Discrimination Case: Mr. Zerehannes' Flexible Working Hours Request, Lecture notes of Business

Download Discrimination Case: Mr. Zerehannes' Flexible Working Hours Request and more Lecture notes Business in PDF only on Docsity! Case No 2600155/2018 2601886/2019 Page 1 of 96 EMPLOYMENT TRIBUNALS Claimant: Mr S Zerehannes Respondents: Asda Stores Limited (1) Mr S Gamble (2) Mr C Tilley (3) *** REMOVED *** (4) *** REMOVED *** (5) Ms E Knight (6) *** REMOVED *** (7) Heard at: Leicester Hearing Centre, Kings Court, 5A New Walk, Leicester, LE1 6TE On: 17, 18, 19, 20, 21, 24, 25, 26, 27 and 28 February 2020 2 and 3 August 2021 (deliberations only, parties did not attend) Before: Employment Judge Adkinson sitting with Ms J Barrowclough and Mr J D Hill Appearances For the Claimant: Dr Ibabakombo, Lay Representative For the Respondents: Ms R Kight, Counsel JUDGMENT After hearing the evidence, and after considering the written submissions of the parties, and after taking time to consider its conclusions, the Tribunal unanimously concludes that: 1. All claims of direct discrimination because of race in claim 2600155/2018 that pre-date 13 September 2017 and in claim 2601886/2019 that pre-date 13 February 2019 are out of time and it is not just and equitable to extend time. Therefore they are dismissed; 2. All other claims of direct discrimination because of race are dismissed; Case No 2600155/2018 2601886/2019 Page 2 of 96 3. All claims of direct discrimination because of disability are dismissed; 4. All claims of victimisation in claim 2601886/2019 that pre-date 13 February 2019 are out of time and it is not just and equitable to extend time. Therefore they are dismissed; 5. All other claims of victimisation are dismissed; 6. The claimant’s claim for unauthorised deduction from wages because of a failure to pay sick pay is dismissed; and 7. The deposit that the Claimant paid as a condition of continuing with his claims for direct discrimination because of disability shall be paid to the respondents under rule 39(5) because the claims failed for substantially the reasons given in that deposit order. REASONS Introduction 1. There are two claims before the Tribunal: 1.1. 2600155/2018 (which is the claim of Mr Zerehannes v Asda Stores Ltd). Early conciliation took place between 12 December 2017 and 9 January 2018 and that claim was presented to the Tribunal on 24 January 2018. 1.2. 2601886/2019 (which is Mr Zerehannes v Asda Stores Ltd, Mr S Gamble, Mr C Tilley and Ms E Knight). Early conciliation on that claim took place between 16 May 2019 and 31 May 2019 and it was presented to the Tribunal on 27 June 2019. 2. The claims were consolidated and heard together because they all relate to the same series of events. All of the complaints arise out of Mr Zerehannes’ request in April 2017 to vary his shift pattern from working three weekends out of four to working two weekends out of four. It was, in essence, a flexible working request and one that Asda (“Asda”, his employer) refused. 3. Rather than bring a claim that Asda had failed to reasonably consider his request for flexible working contrary to the Employment Rights Act 1996 Part 8A, Mr Zerehannes has framed his claim as sustained and repeated acts of direct race discrimination, direct disability discrimination because of his association with his wife who is disabled by reason of asthma, and because of victimisation. It is a notable feature of Mr Zerehannes’ case that, for reasons that are not clear, he was so focused on discrimination and victimisation that that obvious claim relating the flexible working request was never mentioned in the original proceedings. In fact it was first eluded to by Mr Zerehannes himself in a letter to Asda dated 24 October 2017, but not again it seems until in these proceedings by Employment Judge Britton at a case management discussion on 25 September 2018. Mr Zerehannes then for some reason waited a month and then only sought to apply to amend his claim to add a complaint under Part 8A on 26 October 2018. That application was refused by Employment Judge Camp on 28 January 2019. Case No 2600155/2018 2601886/2019 Page 5 of 96 18. In particular, no party has written to the Tribunal to complain that the significant delay between the end of the evidence and the Tribunal making its deliberations has resulted in unfairness to that party. The Tribunal is satisfied that the delay has not impacted on the fairness of the proceedings to the parties because we still have the full bundles, the full witness statements, detail written submissions and the full notes of the hearing and we thoroughly refreshed our memories from those documents before beginning our deliberations. 19. We would like to apologise to the parties for the delay in this case and thank them for their patience with the Tribunal. 20. The Tribunal has reached a unanimous decision, and this is that decision. Issues 21. As demonstrated by the proportion of the bundle that deals purely with procedure, the claims have a long and complicated procedural history, driven for the most part by Mr Zerehannes’ continuous and repeated changes to his case and applications to amend. However, at a hearing on 30 September 2019, Employment Judge Camp finalised once and for all the issues in his Case Management Order at paragraph 13 and that Order was sent to the parties on 10 September 2019. Neither party suggested that he had incorrectly identified the issues either in response to his order or at the hearing before us. We have taken those issues verbatim lest we accidentally gloss over an allegation and set them out below. We have retained the numbering as used in the original documents. Therefore the issues are as follows: Jurisdiction 22. Does the Tribunal have jurisdiction to hear the entirety of Mr Zerehannes’ claim, or are there parts of it which have been brought out of time, do not form part of a continuing act and were not presented within such further period as is just and equitable in all the circumstances? 22.1. The following allegations in claim 1 (2600155/2018) pre-date 13 September 2017 and are prima facie out of time: No Date Allegation by Claimant Type(s) of complaint 1 From 29/04/17 People Service Manager’s failure to acknowledge receipt of the Claimant’s Application for flexible working hours which was made on 29/04/2017 within the Company’s policy timescale of 28 days of conclusion of the request, from the date of receiving the request. Direct race discrimination 2 From 29/04/17 People Manager’s failure to inform the claimant that Employee’s Application for flexible working hours is to be dealt with or concluded within 28 days from the date of receiving the Application or request. Direct race discrimination Case No 2600155/2018 2601886/2019 Page 6 of 96 3 From 29/04/17 People Manager’s unreasonable delay in referring claimant’s Application for flexible working hours (made on 29/04/2017) to relevant managers (Mr W Foster and/or Mr S Nagra). Direct race discrimination, 4 From 29/04/17 People Manager, Mr W Foster and Mr S Nagra’s failure to organise a meeting to discuss the claimant’s Application for flexible working hours within 28 days from date when the claimant’s Application was submitted on 29/04/17. Direct race discrimination, 5 02/06/17 Mr S Nagra’s lack of a proper preparation to the meeting to discuss claimant’s Application on 02/06/2017 i.e. failure to prepare a note taker ahead of the meeting and failure to inform the claimant ahead of the meeting that his chosen Union Rep was not available for the meeting to go ahead 02/06/17 for the claimant to contact a fellow colleague. Direct race discrimination 6 02/06/17 When Mr S Nagra informed the claimant that Mr W Foster will take over the claimant’s Application on his return to work from Holiday on 08/06/2017 without initially agreeing it with Mr W Foster. Direct race discrimination 7 Week commenced on 08/06/17 When Mr W Foster refused to have a discussion with the claimant about his application and sending the claimant back to Mr S Nagra if the claimant wanted to discuss about his Application despite the claimant informing him that Mr S Nagra referred the claimant to Mr Foster who was to take over his Application for flexible working hours. Direct race discrimination 8 06/2017 When claimant was informed by Mr S Nagra that Mr W Foster is the one who will complete the flexible working hours process following him filling the “Colleague Flexible Working Self-Assessment forms” on 02/06/2017 without initially agreeing it with Mr W Foster. Direct race discrimination 9 06/2017 When the claimant went to see Mr W Foster about the progress of his Application for the second time and Mr W Foster then asked the claimant to leave it with him and that he will have a discussion with Mr S Nagra about the Direct race discrimination Case No 2600155/2018 2601886/2019 Page 7 of 96 progress of his Application and will contact claimant as soon as possible after their meeting but he never come back to the claimant. 10 From 02/06/17 to 09/09/17 Mr S Nagra’s failure to re-organise a proper meeting to discuss the claimant’s Application for flexible working hours. Direct race discrimination 13 10/09/17 Mr S Nagra’s failure to provide claimant with a formal Outcome letter including supporting reasons of the refusal of the claimant’s Application for flexible working hours after the meeting on 10/09/2017. Direct race discrimination 23. The following allegations in claim 2 (2601886/2019) pre-date 13 February 2019 and are prima facie out of time: No Date Allegation by Claimant (What happened) Type(s) of complaint Which respondent(s) 4 05/02/2019 Failing to provide an interpreter English-Bilen, leading the initial stage 1 grievance listed on 05/02/2019 being postponed despite of informing the claimant that the Respondent is under duty to provide him with a professional because he has provided other colleagues with professional interpreter (refer to claimant letter dared 18/04/2019) Direct race discrimination & Victimisation Asda Mr S Gamble 17 05/02/2019 When during the grievance meeting (related to claimant’s letter dated 15/11/2018) he was so upset and aggressive when talking to claimant and was so aggressive when questioning and assumed that claimant no longer require an interpreter. Direct race discrimination & Victimisation Asda Mr C Tilley Direct race discrimination 24. Did any of the following amount to less favourable treatment by Asda of Mr Zerehannes (as compared to how others who are not from Eritrea-Bilen or not of the same skin colour but in not materially different circumstances were or would have been treated)? Case No 2600155/2018 2601886/2019 Page 10 of 96 submitted on 29/04/2017 and the written decision was not provided. 15 14/09/17 When Mr A James verbal rejected the claimant’s Application for a “rota change request for flexible working hours”. Direct race discrimination 16 14/09/17 Mr A James’ failure to provide claimant with a formal Outcome letter including supporting reason of the refusal of the claimant’s Application for flexible working hours following the meeting on 10/09/2017 at the time of the rejection. Direct race discrimination 17 From 10/09/17 to 14/09/17 Rejection of the claimant’s application for “a rota change request or flexible working hours” after the meeting on 10/09/2017 by Mr W Foster, Mr S Nagra and Mr A James. Direct race discrimination 18 20/9/17- 05/10/17 Mr A James and/or Mr D Binks’ failure to send a confirmation letter, inviting claimant to attend an Appeal meeting on 5/10/2017 as promised by Mr A James during the adjourned Appeal meeting on 20/9 17 at 16:00. Direct race discrimination 19 11/10/17 When Mr D Binks states that he planned a meeting in for 5/10/2017 and the claimant asked if they could leave it until the following week and the first the time he was available when claimant and Scott James, union rep are in Saturday (14/10/2017), hence the Appeal date being set for then, this. Direct race discrimination 20 11/10/17 When Mr D Binks changed the date of appeal meeting from 11/10/2017 (the date the union Rep and the Claimant were at work) to 14/10/2017 (the date the union Rep was not at work) without contacting the claimant and /or Mr James, union Rep in advance of the change. Direct race discrimination 21 16/11/17 Mr P Alexander’s rejection of the claimant’s formal grievance against the Respondent’s handling of the claimant request for flexible working hours made 24/10/2017 (claimant complained of ongoing being discriminatory), with no supporting reason. Direct race discrimination Case No 2600155/2018 2601886/2019 Page 11 of 96 22 16/10/17 When during the review meeting, Shawn Wells said: this was not time for claimant to raise complaint about discrimination (race and disability) in replying the claimant’s complained that the manner the managers were dealing with his request was discrimination act because he knew people who were granted flexible working hours and his wife is suffering from Asthma but the company is not given him flexible working hours to help his wife and children. Direct race discrimination 23 16/10/17 When during the review meeting, Mr S Wells and Mr M Broadaway refused claimant’s request for the postponement of the sick pay review meeting without a good reason; request made on grounds of his health conditions. Direct race discrimination 24 16/10/17 When during the review meeting, the claimant said he was not mentally fit to answer questions but Mr M Broadaway, note taker wrongly recorded that claimant said: he was not mentally unfit to answer these questions and refusing to correct it without good reason despite the claimant’s resistance to this and requested it to be amended. Direct race discrimination 25 From 18/10/17 to 27 February 2018 When in her letter dated 18/10/2017, Ms S Hammond suspended claimant’s Company sick pay without a good reason despite of having claimant’s sick not (sic). Direct race discrimination 26 16/11/17 [Mr P Alexander]’s rejection of the claimant’s Appeal against the suspension of his sick pay, submitted on 24/10/2017 (claimant complained of ongoing being discriminatory), without good reason despite of having claimant’s sick not (sic). Direct race discrimination 27 16/11/17 When summarised the concerns raised within claimant’s grievance as being his “flexible working request however, Mr P Alexander] has ignored the consequences of failing to deal with claimant’s request which is a cause of his absence from work due to work related stress and it was also the claimant’s Appeal against the suspension of his sick pay. Direct race discrimination 28 16/11/17 When stated that Mr P Alexander] gave claimant a further opportunity when they met Direct race discrimination Case No 2600155/2018 2601886/2019 Page 12 of 96 on 02/11/2017 to hear this as an appeal rather than a grievance but claimant declined whilst the claimant wanted his grievance to be firstly heard and his appeal letter against the refusal of his flexible working hours being heard in second position. 29 16/11/17 Mr P Alexander]’s failure to recommend the business to pay claimant’s sickness absence entitlement, resulted from Mr W Foster and Mr S Nagra’s failure to deal with claimant’s request within the 28 days’ timeline despite of Mr P Alexander] recognising that Mr W Foster and Mr S Nagra were responsible for failing to deal with claimant’s request within the 28 days’ timeline. Direct race discrimination 30 16/11/17 When Mr P Alexander] stated that given the nature of the lengthy delay he believes this matter would have been dealt with sooner if the claimant had escalated his dissatisfaction to a Shift Manager earlier despite that the Flexible work request is to be sent to “People Service” who are to refer it to a relevant manager. Direct race discrimination 31 16/11/17 When Mr P Alexander] stated that that claimant had an opportunity for appeal to be head (sic) on 20/09/17 and that claimant stated that this meeting did not go ahead due to his chose Rep, Scott James not being available even though an alternative GMB Rep could attend. Direct race discrimination 32 16/11/17 When Paul accepted Mr A James’ evidence without good reason and supporting evidence and rejected claimant’s evidence with no supporting good reason and supporting evidence. Direct race discrimination 33 16/11/17 When he accepted Mr S Wells’ oral evidence that claimant refused to fully explain the reason for his absence from work during the meeting on 16/10/2017 despite of the claimant provided the business with sick notes which including reasons. Direct race discrimination 34 16/11/17 When Mr P Alexander] accepted Mr S Wells’ evidence that the claimant has even prevented his Rep from answering on his behalf whilst the notes of the meeting on 16/10/17 recorded that claimant said “could he please ask that Scott Direct race discrimination Case No 2600155/2018 2601886/2019 Page 15 of 96 48 30/12/17 When Mr A Swetman ignored the claimant’s sick notes provided to the business which supported that he was not “absent without leave”. Direct race discrimination 49 30/12/17 When Mr A Swetman denied Claimant right to discuss the details of claimant’s own Case with any colleague (or make more enquiries of the business) who can provide him with advice and/or in order for him to get factual information about comparators and to get reasons/grounds why other colleagues were allowed flexible work by 04/01/2018 at 2pm. Direct race discrimination 50 30/12/17 Mr A Swetman’s failure to provide the claimant with a copy of the business policy or guidance which supporting that “an employee is not to discuss the details of his/her own Case with any colleague (or to make more enquiries of the business) who can provide him with advice and/or in order form him to get factual information about comparators and to get reasons/grounds why other colleagues were allowed flexible work. Direct race discrimination 51 From 11/01/18 Mr A Swetman’s failure to address the claimant’s letter of 11/01/2018 and to provide him with requested Statuary Sick Pay Form (SSP1); failure to up dated the claimant as to progress of the investigation process related to the Appeal meeting which took place on 05/12/2017 and Lack of consideration to the claimant’s information that the delay with his grievance Appeal is causing him more stress and his health to deteriorate. Direct race discrimination 52 27/03/18 Mr P Statham’s rejection of the Claimant’s Appeal against Mr P Alexander with no supporting good reason. Direct race discrimination 53 27/03/18 Mr P Statham’s failure to contact Claimant after the Stage 1 grievance Appeal meeting with him on 5th December 2017. Direct race discrimination 54 27/03/18 Mr P Statham’s failure to provide Claimant with his Outcome of the Stage 1 grievance Appeal, within 5 days of the meeting on 5th December 2017. Direct race discrimination Case No 2600155/2018 2601886/2019 Page 16 of 96 55 27/03/18 Mr P Statham’s failure to give explanation for the delay of providing Claimant with outcome letter from 5th December 2017. Direct race discrimination 56 27/03/18 Mr P Statham’s failure to advise Claimant the date when a response (or outcome of the Stage 1 grievance Appeal) can be expected if the 5 days’ timescale of providing the outcome was not possible, this from 5th December 2017. Direct race discrimination 57 27/03/18 Mr P Statham’s failure to contact Claimant after Natalie Hersey’s email to the claimant on 12th January 2018 in which Natalie Hersey write that in relation to my outstanding grievance, she believes that this is being picked up externally by Mr P Statham and that she has contacted Mr P Statham today (12/01/2018) and Mr P Statham has advised he is still investigating claimant’s concerns and is looking to have an outcome ready by next week. Direct race discrimination 58 27/03/18 Mr P Statham’s failure to provide Claimant with his Outcome of the Stage 1 grievance Appeal, within 5 days from 12th January 2018. Direct race discrimination 59 27/03/18 Mr P Statham’s failure to give an explanation for the delay of providing Claimant with outcome letter from 12th January 2018. Direct race discrimination 60 27/03/18 Mr P Statham’s failure to advise Claimant the date when a response (or outcome of the Stage 1 grievance Appeal) can be expected, this from 12th January 2018. Direct race discrimination 61 27/03/18 Unreasonable delay to provide claimant with his decision dated 27/03/2018 which was received on 05/04/2018; this breach of the Company policy and ACAS code of practice. Direct race discrimination 62 27/03/18 Mr P Statham’s conclusion that the claimant cannot claim that Mr P Alexander’s decision was an act of victimisation allegedly because he said he has not submitted a previous grievance or complainant regarding discrimination. Direct race discrimination Case No 2600155/2018 2601886/2019 Page 17 of 96 63 27/03/18 Mr P Statham’s failure to properly examine medical evidence supported the reason of my absence; Direct race discrimination 64 05/2018 Mr S Gamble’s rejection of the claimant’s Company Sick Pay-Appeal dated 27/03.2018 and failure to properly examine medical evidence supported the reason of the claimant’s absence, with no supporting reason. Direct race discrimination 65 07/05/18 Mr D Binks’ rejection of the claimant’s Appeal against the refusal for a change to his working arrangements-flexible work, with no supporting reason. Direct race discrimination 66 From 06/02/18 up to 22/05/18 Ms N Hersey’s continuous failure to arrange stage 1 grievance relating to the claimant’s grievance letters dated 06/02/2018 and to inform the claimant the name of the manager who was supposed to deal with claimant’s grievance letters dated 06/02/2018 and 14/02/2018. Direct race discrimination 67 From 03/01/18 up to 22/05/18 Mr A Swetman’s continuous failure to arrange stage 1 grievance relating to the claimant’s grievance letter dated 03/01/2018 and to inform the claimant the name of the manager who was supposed to deal with claimant’s grievance dated 03/01/2018. Direct race discrimination 24.2. The following actions of Mr Tilley by letter of 16 July 2019: 24.2.1. the rejection of Mr Zerehannes’s grievance appeal? 24.2.2. the alleged provision of inadequate reasons for the rejection of Mr Zerehannes’s grievance appeal? 24.2.3. Asda and Mr Tilley’s failure to provide with the grievance appeal decision letter all of the information and documentation C had been seeking. 24.3. Allegations 3-11 and 16-23 as set out below: No Date Allegation by Claimant (What happened) Type(s) of complaint Which respondent(s) 3 12/12/2018 – 27/06/2019 Handling of claimant’s grievance dated 12/12/2018 (see claimant’s letter dated 26/02/2019 and note of the meeting on 26/02/2019) and/or delaying in concluding claimant’s grievance dated Direct race discrimination & Victimisation Asda Mr S Gamble Case No 2600155/2018 2601886/2019 Page 20 of 96 grievance meeting but Mr C Tilley insisted that Mr Kidane was a suitable person to interpret and consequently, during the meeting Mr Kidane would not properly interpret and leading the meeting being postponed again. 19 14/03/2019 Mr C Tilley’s failure to take reasonable steps for the appeal meeting to go ahead i.e. failure to arrange a qualified Bilen-English Interpreter to assist claimant with interpretation on 14/03/2019 with no supporting reasons. Direct race discrimination & Victimisation Asda Mr C Tilley 20 14/03/2019 Mr C Tilley has failed to properly consider the contents of claimant’s letter dated 11/02/2019 with no supporting reasons particularly, when I stated “I have organised Mr Tekleab to be present at the meeting however, for the reasons unknown by claimant he didn’t attend the meeting so why I was to be blamed whilst all this could have been avoided by providing claimant with a qualified interpreter.” Direct race discrimination & Victimisation Asda Mr C Tilley 21 14/03/2019 When during the meeting, after the adjournment of the appeal meeting, Mr C Tilley stated that “having had chance to look at what they are going to do is reschedule the meeting until at the time when the interpreter (Mr Tekleab) who was in the meeting with UMAR is available; as clearly that worked really well and will be a way of ensuring that Mr C Tilley get every opportunity to put claimant’s case across. The interpreter is currently off Direct race discrimination & Victimisation Asda Mr C Tilley Case No 2600155/2018 2601886/2019 Page 21 of 96 sick but as soon as he returns and they will come back and conducted the appeal; 22 15/11/2018 – 27/06/2019 Delaying in conclusion of the stage 2 grievance process with no supporting good reason (refer to para.55.8 of ET1 continuation Sheet) Direct race discrimination & Victimisation Asda Mr C Tilley 23 24/05/2019 – 27/06/2019 Mr C Tilley’s delay in dealing with contents of the claimant’s letter dated 24/05/2019. Direct race discrimination & Victimisation Asda Mr C Tilley 24.4. If so, was that treatment because of any of the following: 24.4.1. Mr Zerehannes’s national origin of Eritrean – Bilen? and/or 24.4.2. His dark skin colour? Direct disability discrimination (by association) 25. Did any of allegations 1-6 below amount to less favourable treatment of Mr Zerehannes (as compared to how someone doing the same or similar work to him who made a request to do less weekend work but not because they need to provide support to a close relative who is a disabled asthma sufferer would have been treated) by Asda? No Date Allegation by Claimant Type(s) of complaint 1 14/09/17 Mr A James’ verbal rejection of the claimant’s Application for a “rota change request or flexible working hours” to care for his disable wife and/or to help her disable wife with housekeeping including children) with no supporting reason. Associative direct disability discrimination 2 From 10/09/17 to 14/09/17 Mr W Foster, And Mr S Nagra’s rejection of the claimant’s Application for “a rota change request or flexible working hours” after the meeting on 10/09/2017 Associative direct disability discrimination 3 From 17/09/17 Complaints related to/including the Handling of the claimant’s appeal against the decision to refuse the claimant’s application for “a rota Associative direct Case No 2600155/2018 2601886/2019 Page 22 of 96 change request or flexible working hours”, appeal made on 17/09/17 against Mr A James and/or Mr D Binks. disability discrimination 4 16/11/17 Mr P Alexander’s rejection of the claimant’s formal grievance against the Respondent’s handling of the claimant request for flexible working hours with no supporting reason on 16/11/2017 Associative direct disability discrimination 5 27/03/18 Mr P Statham’s Handling and Rejection of the Claimant’s Appeal against Mr P Alexander], with no good reason. Associative direct disability discrimination 6 07/05/18 Dany Binks’ rejection of the claimant’s Appeal made on 17/09/2017 against the refusal for a change to his working arrangements, with no supporting reason and unreasonable delay or Procedural unfairness concluding appeal process on 07/05/2018 as the appeal letter was submitted on 17/09/17. Associative direct disability discrimination 26. If so, was that treatment because of Mr Zerehannes’s wife’s asthma? Victimisation 27. Did any of the following amount to detrimental treatment of C by : 27.1. The allegations in paragraphs 24.2 as though they were separate acts of victimisation. 27.2. The allegations marked as “victimisation” in the table at paragraph 24.3 above; 27.3. The 21 allegations set out below which are against Asda only (albeit they name individuals): 27.3.1. When on 27/03/2018, Mr P Statham rejects Claimant’s Appeal against Mr P Alexander 27.3.2. Handling of the claimant’s Appeal against Mr P Alexander’s rejection of the claimant’s formal grievance against the Respondent’s handling of the claimant request for flexible working hours with no supporting reason as per Claimant’s letter dated 14/02/2018. Case No 2600155/2018 2601886/2019 Page 25 of 96 30. If so, how much less was he paid? Findings of fact Witnesses generally 31. The Tribunal considers that the Respondents’ witnesses have been honest and reliable in the evidence that they have given. They gave straight answers to straight questions. 31.1. For example, when Mr Alexander was asked about his investigation into grievances that Mr Zerehannes had raised, he readily and unhesitatingly conceded he did not ask about the motivation of the alleged perpetrators for acting as they did, that that question would have been relevant to determining whether or not there had been any racial elements or discrimination to their decision making process, and therefore he should in hindsight have asked. There was no attempt by him to cover it up and we think that is something that stands to his credit. 31.2. Similarly, Mr Statham, who carried out investigations into matters, admitted he did not actually understand the concept of a protected act in relation to victimisation. However, again, rather than play it down or seek to cover up his lack of understanding, he admitted it and was upfront about the omission. 31.3. We concluded that the other Respondents’ witnesses were straightforward and answered the questions as put to them. 31.4. Generally speaking, the evidence of the respondent’s witnesses was clear, appeared to be unreserved and was consistent not only with each other but also with the documentary evidence that had been put before the Tribunal and to which we were referred. 32. We take a different view, however, of Mr Zerehannes. In coming to this conclusion we have recognised the guidance in the Equal Treatment Benchbook that those whose first language is not English or who were raised in a different culture to Great Britain may well have difficulty communicating because of both linguistic and cultural barriers. However, at no point did the claimant raise any complaint about difficulty communicating and weighing everything up we do not accept that these potential difficulties are sufficient to explain the general lack of satisfaction with Mr Zerehannes’ own evidence. 32.1. The first thing that concerned the Tribunal is the general thrust of Mr Zerehannes’ evidence has been to label everything as discrimination or victimisation but, when asked both in cross- examination and by the Tribunal, he said he alleged discrimination simply because he felt it was. At no point in his evidence in chief, cross-examination or in answers to the Tribunal (despite being plenty of opportunity to do so) has he even tried to point the Tribunal to anything that might suggest his race, wife’s asthma or his previous complaints of discrimination are connected to what happened. When asked specifically by Case No 2600155/2018 2601886/2019 Page 26 of 96 the Employment Judge: “Why do you believe that it is down to race, disability or victimisation”, he simply replied: “I just believe that it is”. 32.2. His approach has been simply to use the label and then take a step back. The tenor of his evidence was that so far as he was concerned everything was discrimination or victimisation because he had said so and the respondents had not shown otherwise. We noted above he relied just on his belief without being able to point to a single thing that led to that belief. We noted in evidence he would often point out his assertion that the respondents had not proven otherwise. 32.3. Specifically 32.3.1. the Tribunal was not impressed by Mr Zerehannes labelling every single little thing as being an act of race discrimination, victimisation or disability discrimination, as the case may be. We can understand how a person might say that a failure to carry out an adjustment to a working pattern was because of race or disability but it is very difficult to see how, for example, a meeting starting late could be down to discrimination or the failure for a note taker to attend was down to discrimination. Mr Zerehannes at no point was able to explain his beliefs or give any reasons for that. It all seemed inherently implausible and exaggerated. There was a complete absence of reality overall and he provided nothing to suggest to us otherwise. 32.3.2. it is notable that Mr Zerehannes produced a witness statement to the Tribunal that consisted of 96 pages and yet nowhere in that did he set out anything that he said showed what happened was down to discrimination or victimisation (as may be). It is quite remarkable, and in our view reflects badly on him, that he could say so much and yet not be able to provide any single detail on those key issues. 32.4. Mr Zerehannes also appeared to be reluctant, or unwilling, to accept the patently obvious when it went against him and that he would be prepared to focus on things that looked good for him while ignoring the unfavourable things or the overall circumstances. For example, one of the allegations that has arisen is that Mr Zerehannes was a worse performer than another employee whom we will call as AK. We were taken to statistics that compared Mr Zerehannes to AK over 26 weeks or thereabouts. The statistics show how may items each had been targeted to pick in their shift by the system, how many items they did pick and therefore recorded an efficiency, that being a percentage of those items picked compared to those which he should have picked during the course of his shift. If they cleared Case No 2600155/2018 2601886/2019 Page 27 of 96 their target, the system allocated more items to them to pick and recorded this as extras. Thus, if an employee picked more than the initial target during their shift, then their efficiency would be greater than 100%. Simple mathematics show that AK’s performance over that 26 weeks was 100.8% and that Mr Zerehannes’ performance over that same period was 97.9%. In spite of that, the Mr Zerehannes insisted that his performance was as good, if not better, than AK’s based purely on the fact that in some weeks, his efficiency was greater than AK’s even though that was highly selective and ignored the overall circumstances. 32.5. His inability to accept reality or to make appropriate concessions occurred in relation to other matters during the case as well. For example, he made a specific allegation that a Mr W Foster was involved in the decision not to grant Mr Zerehannes his request for flexible working. In cross-examination, he accepted that Mr Foster had not told him that he was going to refuse his flexible working request. He also accepted that Mr Foster did not in fact attend the meeting involving that request. When asked therefore if he agreed that Mr Foster was not the person making the decision, his immediate reply was simply to say: “Well, how do I know”. 32.6. He also refused to accept other obvious facts. For example, one of his comparators is a Mr D Binks. Mr Binks is a manager and not a warehouse colleague like Mr Zerehannes and yet he refused to accept that Mr Binks was on different terms or conditions of employment even though he is doing a different and more senior job. He later refused to accept that the fact that Mr Binks’ request to work fewer hours during the week is a qualitatively different request to a request to work fewer weekend shifts. 32.7. Mr Zerehannes also has the habit of linking on to phrases to try and support his contention. He alleged, for example, that his trade union representative had commented that the Respondents would use the excuse of business needs in order to discriminate against “people like Mr Zerehannes]”. Mr Zerehannes has instantly jumped to the conclusion that this must be a reference to race discrimination but there is absolutely no explanation as to why that must be so. It could for example as easily have been a reference to some other protected characteristic that Mr Zerehannes had; it could have been a reference to the fact that he was a warehouse operative and that that was considered a lowly post not worthy of proper support or it could have been a reference to anything else besides. It simply seems to us to be yet another example of Mr Zerehannes leaping to the conclusion that because he has not got his way, it must be discrimination. Case No 2600155/2018 2601886/2019 Page 30 of 96 discrimination and victimisation, complaints that the refusal of flexible working caused him stress yet he then refused to attend meetings that might have resolved the issue he had raised, or occupational health meetings that may have got him back to work (or supported his flexible working request) and what appears to be the deliberate throwing up of obstacles such as refusing to attend occupational health appointments unless Asda provided him with transport (which ignores the fact it is his responsibility to get to work). Whether that is because it is in his character to behave like that or because someone influential behind the scenes gave him what we would consider misguided and unhelpful advice to conduct himself like that we do not know. However, we think that it would make no difference, since ultimately how he behaved was his decision. Factual findings 34. With that in mind, we turn then to make the following findings of fact and on the balance of probabilities. Mr Yusif’s case 35. Prior to the index events of this claim, there was a claim by Mr S Yousif against Asda which Mr Zerehannes relied upon. It was not clear why it might be relevant. The Tribunal notes that it was a claim for disability discrimination that was ultimately struck out by the Tribunal. We believe that it does not therefore help our deliberations to consider that case any further, and therefore ignore it. About Mr Zerehannes 36. Mr Zerehannes is employed by Asda working in the IDC as a Warehouse Colleague. His job is to work on various shifts to which he has been allocated, picking items from the stock so they can be sent out to supermarkets as needed. 37. Mr Zerehannes identifies his race for the purposes of this claim as “Eritrean- Bilen” nationality and/or “dark skin colour” (see paragraph 13 of the case management summary of Employment Judge Camp for the hearing on 28 January 2019”. Mr Zerehannes’s wife is disabled within the meaning of the Equality Act 2010 because of asthma. About Asda and the other respondents 38. The First Respondent is a large supermarket chain that operates throughout the United Kingdom. It has approximately 300 stores and employs approximately 170,000 employees, described as “colleagues” across Great Britain. 39. The other respondents are employees within Asda. Their exact roles are set out in paragraph 7 above. About the IDC 40. The IDC is one of many distribution centres that Asda has. The IDC which these claims concern is located at Magna Park, Lutterworth, South Leicestershire. It operates 24 hours a day, every day of the week. The warehouse staff operate in shifts. Case No 2600155/2018 2601886/2019 Page 31 of 96 41. Within the IDC there are various departments that cover different categories of products that Asda sells in its stores. 42. The departments are headed up by a departmental manager, whose job is to make sure that sufficient stock is available in their department. The operations are divided into shifts which are headed up by shift managers, who are responsible for making sure that their shifts work efficiently. 43. As Asda’s stores run low on various products, requests for new stock are automatically relayed by the logistics computer system to the relevant IDC for that store. Thus requests for fresh stock are coming into the IDC all the time. The products are stored on various shelves or locations. Each location has a label with data (like a postcode) so that someone can locate it. The warehouse operatives like Mr Zerehannes have an electronic device. It tells them to go to a particular location and collect a specified number of units of whatever product. Once done, it directs him to another location for different items, and so forth. Some departments have heavy items and some have lighter items. The system sets a target for how many items a warehouse operative must collect (called picking) in their shift. The closer the number of items to the target allocated the greater their efficiency. The target is different for each department to reflect the differences in weight, manoeuvrability and the like that would affect how easy it would be to pick an item. The targets for an operative are set automatically by the system and not manually by members of staff. If a warehouse operative hits the target then the system will allocate more tasks but calculate an efficiency that will exceed 100%. 44. The goods are moved to the loading bay and loaded onto the lorry. That then delivers the goods to the relevant stores so they can then be sold to members of the public. 45. The warehouse operatives are also responsible for moving the deliveries of products coming into the IDC to their relevant departments ready for picking later. 46. In what might be a statement of the obvious – albeit the Claimant did not accept this – the IDC becomes extremely busy in the run up to Christmas because stores themselves are incredibly busy. This is both inherently plausible and accords with general experience of the Tribunal that shops are busier in the approach to Christmas. Therefore as requests come in from the stores during this busy period, there is a requirement for extra work to be able to make sure that lorries can be despatched with efficiency with goods to the stores as they run out. It is very much a “just in time” operation. Mr Zerehannes’s employment commences 47. Mr Zerehannes’ contract of employment identifies his start date as 14 September 2014 and that he is to work 40 hours per week. It further says he may be required to work any 5 from 7 shifts on such days and such times as Asda may require. Sick pay terms 48. In relation to sick pay, his contract says as follows: “Sick pay Case No 2600155/2018 2601886/2019 Page 32 of 96 “Details about sick pay are contained in your Asda Logistics Services Absence & Sickness Policy Booklet. “Subject to you following absence notification procedures, as detailed in the Asda Logistics Services Absence & Sickness Policy, you may be eligible for the following occupational sick pay at basic rate plus shift allowance if applicable. “The procedure for notification of absence is detailed in the Asda Logistics Services Absence & Sickness Policy, which is available from the People Team, and does not form part of your contract of employment. …” The People Team is Asda’s euphemistic term for human resources (HR). 49. The said absence and sickness policy was agreed between the trade union and Asda in 2014 and, so far as relevant, reads as follows: “MANAGING SICKNESS ABSENCE – NOTIFICATION “Notification of Sickness absence / Contract during Sickness absence Procedures “ * If a colleague is absence from work, for whatever reason, they should inform the depot, ideally one hour before the start of their shift. In exceptional circumstances, such as hospitalisation or an accident, contact should be made as soon as possible. “ * Colleagues should, where possible, speak to their own Manager. If they cannot contract their Manager, then they should try to contact an alternative i.e. Shift Manager or Ops Manager. The colleague’s Manager should later return the call and speak to the colleague personally to confirm details of the sickness absence. “ * The self-certificate form should then be completed by the Manager and retained securely until the colleague returns. If a colleague’s sickness absence lasts longer than seven days and a Fit Note is submitted, the self- certification will be processed for SSP/CSP [SSP is Statutory Sick Pay, CSP is Company Sick Pay] purposes and signed retrospectively at the RTWI [RTWI is the Return To Work Interview]. “Colleagues must give notice of their return to work; ideally during the shift prior to their return. If they do not, and their hours have been covered, they may be sent home. “Self-Certification and Medical Certificates “ * Colleagues are able to self-certify themselves for the first seven calendar days of any sickness absence. “ * RTWI acts as the Self Certification process for the purposes of processing a Sick Pay claim for the first seven days. “ * Asda Distribution will not normally request a Fit Note for sickness absences of less than seven days, unless there is reason to believe the sickness absence is not genuine. If this is requested, Asda Distribution will pay for any GP charges incurred. “Non-Notification of Sickness absence (AWOL) [Absent without leave] Case No 2600155/2018 2601886/2019 Page 35 of 96 a decision to move some people who applied to a pattern of working 2 weekends out of every 4. 57. There was more interest in the scheme than was possible to accommodate. In order to assess who should be moved, Asda undertook a comparison between the various employees and moved those who were the most efficient. The scheme also measured absences and service. The criteria and assessment models were agreed in consultation with and by the trade union. We discussed the comparison of AK’s efficiency to Mr Zerehannes’s above. That comparison was done as part of this exercise. As noted, AK was more efficient that Mr Zerehannes. 58. Mr Zerehannes suggested that this is an unfair comparison, though no claim has arisen from this and Mr Zerehannes did not complain at the time. However the Tribunal can see no unfairness in it, and believes it is simply an attempt by Mr Zerehannes to cast around for things to support the unsubstantiated belief he has been discriminated against or victimised. AK worked in a different department with different types of items to pick. We also think that the 26 -week period, which is the equivalent of course to half a year, was a perfectly reason period over which to measure performance. Given the volume of complaints now and his belief he has been the victim of discrimination and victimisation, we are quite sure he would not have let it lie were he to believe that this was a discriminatory act or simply unfair or flawed. Events until April 2017 59. Between the commencement of his employment and 29 April 2017, nothing of any note happened, even on Mr Zerehannes’ case. That in our view is significant in undermining Mr Zerehannes’ suggestion that there was racism, let alone institutional racism, at Asda. If it were the case, then one would expect to see complaints and claims from before this date. The only change at this time is Mr Zerehannes applies to change his shifts. Mr Zerehannes’s application for flexible working 60. On 29 April 2017, Mr Zerehannes wrote a letter addressed to the HR Manager and this reads as follows: “I … would like to request a rota change from 3/4 weekends to go on to a 50/50 rota, I am requesting this as a childcare request. My wife is struggling to cope with caring for our children at weekends when they are not at school. This issue is being caused by her stress/anxiety condition, which cause acid reflux and affects her asthma which is documented on my file, I hope you are able to consider my reason for this request and I look forward to your response. …”. It was not on the form that the policy required. He was asked to submit it on the proper form. 61. Mr Zerehannes eventually did make his request in the appropriate form under the “Right to Request Informal Request Form” where under “Details of Request” he said: “CHILD CARE WIFE’S ILL HEALTH STRUGGLING TO LOOK AFTER 3 CHILDREN WHEN I WORK 3 WEEKENDS.” Case No 2600155/2018 2601886/2019 Page 36 of 96 62. One of the forms that an employee also has to complete is the Colleague Flexible Working Self-Assessment. This is to enable the colleague to assess for themselves the merits of their flexible working request and also to enable Asda to understand what has already been considered and why it would not work. In this form, Mr Zerehannes again emphasises the struggle that his wife is having to look after the children for 3 weekends out of 4. He confirmed that he is flexible to work any weekdays, he just requires alternate days off at the weekend. He says that it will not affect his pay or benefits because he still proposes to work 40 hours per week. 63. Under the question: “Should your request be declined, what other options would you consider?” he wrote: “I probably would consider if the request is available on other shifts or consider lifestyle or career break till my 13-month baby is older.” 64. Under the question “What is the reason for your request? he wrote: “Family reason as my wife was diagnosed with asthma on last October 2016 and also she have acid reflux and stress most of the time she is not feeling well when she stayed with children specially on weekends.” Under the question “When would you like the proposed change to start and why?”: “If it is possible I would be happy to start as soon as possible.” 65. Mr Zerehannes then went on to confirm that he sought to work 2 weekends out of 4. He signed but did not date the form. 66. It is not entirely clear when Mr Zerehannes actually submitted this to Asda. In late April when he suggested he submitted it, Mr Zerehannes’ line manager was changing from Ms S Day to Mr W Foster. However, Mr S Nagra, the Department Manager, wrote to the Mr Zerehannes an undated letter that confirmed that the application was received on 28 May 2017. This is the only date that we have got and is reasonably proximate to when Mr Zerehannes first sought to raise the issue. There is no reason to doubt it. We find as a fact that the application was not actually formally submitted to Asda until 28 May 2017. Hearing of the application 67. Mr S Nagra told Mr Zerehannes that he had arranged a meeting for 2 June 2017 to take place and that there would be someone else there to take notes. He emphasised that Mr Zerehannes was entitled to be accompanied. 68. However, for whatever reason that meeting did not proceed. It seems and we find as a fact that what was going on at the time was a confusion behind the scenes between Mr Foster (Mr Zerehannes’s Shift Manager) and Mr S Nagra (the Department Manager) as to who was actually responsible for progressing this request. . There is no evidence to suggest race or disability played any part in what happened. Instead we find as a fact that there was a delay in progressing his application and holding a hearing was down entirely to innocent, genuine errors on their part and a misunderstanding of Case No 2600155/2018 2601886/2019 Page 37 of 96 their responsibilities. They unfortunately did not keep Mr Zerehannes informed. 69. Eventually the meeting did take place on 10 September 2017. Mr Zerehannes attended. Mr Zerehannes was represented by Mr S James, who is a trade union representative. Mr S Nagra had been allocated as the decision maker. During the course of the meeting, Mr Zerehannes repeated and stood very much by the things that he had put in his application form. 70. Mr S Nagra was not able at the meeting to decide in Mr Zerehannes’s favour. Therefore he postponed the meeting in line with Asda’s flexible working policy to allow time for reflection. Mr S Nagra thus wrote to Mr Zerehannes on 14 September 2017 to fix a further meeting for 18 September 2017 to discuss the outcome of his flexible working request. Appeal even though decision not made 71. In what became typical of Mr Zerehannes’s approach, rather than await the outcome, he lodged an appeal “against the decision made on 13 September to decline his request for flexible working…” We note that no decision was made on 13 September 2017. 72. In his letter of appeal he: 72.1. complained about the process that had been followed and said it was totally outside the policy, and 72.2. wanted an explanation of why the management team had “no duty of care for himself and his family, leaving him and his family stressed and upset.” 73. He added: “This whole ordeal has been so upsetting for me and my family, I feel that I have been discriminated and victimised throughout the process and I wish to elaborate in more detail within the meeting.” 74. That letter was not delivered to Asda until 18 September 2017 and the meeting was then fixed to take place on 20 September 2017, to be conducted by Mr A James, a shift manager, with a notetaker present. He was reminded of his right to representation. The meeting on 20 September did not go ahead because Mr Zerehannes’s preferred union representative was not available. In fact another representative from the same union was available but Mr Zerehannes refused to proceed. Outcome of flexible working request 75. On 20 September 2017, Mr S Nagra wrote to Mr Zerehannes in the following terms: “I am sorry to say that your request has been declined from changing your working rota as we are not looking at losing head counts on weekends and also that this will have a detrimental effect on ability to meet customer demand as weekend working is the most busiest period of the week.” Case No 2600155/2018 2601886/2019 Page 40 of 96 again gave us concern as to Mr Zerehannes’ credibility or a preparation to accept reality. Our view is that OR’s situation is not in any way comparable to that of Mr Zerehannes. 83.4. The fourth comparator was ST. ST was a Manager and sought to reduce the hours that he worked. His shift was to work 2 weekends out of 4 and he sought reducing his hours but to continue to work 2 weekends out of 4 still. Therefore, he was not asking for the same adjustment that Mr Zerehannes was asking for and therefore in our view he was not materially in the same situation as Mr Zerehannes. Appeal against outcome 84. Mr Zerehannes maintained his appeal against the outcome. 85. Mr Binks invited him to an appeal meeting to take place on 14 October 2017. He acknowledged in that letter that the meeting was originally set for 20 September, but that Mr Zerehannes had asked for a second invite and that then he was on holiday. He also said that it had been planned thereafter for 5 October and that Mr Zerehannes had asked if it could be left until the following week when both he and his union representative were available. 86. Therefore, the fact that there was a delay it seems to us to be something for which Asda cannot be criticised. Absence and suspension of sick pay 87. On 13 October 2017 Mr Zerehannes was away from work. In the self- declaration he said his absence was because of “stress”. He was away until 14 October 2017. In a call that day, he told Mr Foster that his stress was work related and family related and connected to the delays determining his application. He was reminded that he was supposed to be attending an appeal hearing that day. 88. It was agreed that Mr Zerehannes would talk with Mr Foster the next day to discuss his absences. Mr Binks offered to conduct the appeal hearing that day too, though Mr Zerehannes declined. 89. On 14 October 2017, Mr Foster telephoned Mr Zerehannes to talk to him about his absence. He summarised the discussion as follows: “[Mr Zerehannes] states stress is work regard to family issues and the rota request he has put in that he is awaiting outcome and length and delays was causing stress. Reminded [Mr Zerehannes] outcome was today with [Mr Binks] which he states he was aware.” 90. On 15 October 2017, Mr Zerehannes and Mr Foster met at the IDC to discuss his absence. Mr Zerehannes signed a note of what was discussed at the meeting. It records as follows: “[Mr Zerehannes] visited walk in centre Friday due to work related stress. No medication and advised to see GP. Advised to take paracetamol for headaches. [Mr Zerehannes] states he is only sleeping 3 hrs a night and not eating due to stress. The cause of stress is due to the right to request and ongoing health issues with wife and care for child. Offered to complete Case No 2600155/2018 2601886/2019 Page 41 of 96 right to request. [Mr Zerehannes] declined due to high level of stress. And will when feeling better. Plans to call GP tomorrow as advised.” 91. Given the stress was work-related and connected to the flexible working request which Mr Binks was looking into, we find it odd that Mr Zerehannes refused to meet with Mr Binks on 15 October 2017 to resolve it. We can appreciate stress is unpleasant (to say the least) but would have thought that as he was at the IDC and there appeared to be no real reason why that appeal meeting could not go ahead, and it related to the source of what he said made him too unwell to attend work, it is something he should have agreed to. 92. On 16 October 2017, Mr Zerehannes attended a meeting with Mr Wells. He was represented by his trade union representative, Mr James. There was a notetaker and Mr M Broadway there. It is notable that no interpreter was provided for Mr Zerehannes but the meeting proceeded without apparent linguistic difficulty. In the meeting, Mr Wells asked: “Could you explain the situation around your current absence”. Mr Zerehannes replied: “Could I please ask that Scott James explain everything as I am too stressed out with situation at the moment in time to answer these questions clearly. I am not mentally fit to answer these questions and I will happily await the request of your CSP withholding and the reasons and go from there.” 93. In the note itself, someone has written the word “un” in front of the word “fit” but it is quite clear that that is an addition that has been made afterwards and what is meant to convey is that: “I am not mentally fit to answer these questions”. It would seem somewhat odd if he said: “I am not mentally unfit”. because he would be speaking with a double negative (which seems unlikely given English is not his first language), it seems inherently implausible thing to say and he would be saying something opposite to his clear position. We therefore believe that the “un” has been inserted as an attempt by someone to provide a correction to what was said but in fact is merely introducing an error into something that was correct in the first place. While misguided, we have no reason to doubt the addition was made innocently because no-one would or could reasonably conclude that Mr Zerehannes was saying he was fit to attend work. 94. Mr Zerehannes refused to sign those notes saying he was not in the right frame of mind. However, they were signed off by his representative as being Case No 2600155/2018 2601886/2019 Page 42 of 96 an accurate record and we have therefore no reason to believe they are not. 95. Mr Wells concluded that he should stop Mr Zerehannes’s CSP. Therefore, Mr Wells completed a form requesting the stoppage of CSP. He said under the reasons for stoppage request: “We have offered to conduct meeting asap as this a factor to his stress. However the colleague is unreasonable refused to attend, why the colleague is refusing to complete meeting we will always struggle to facilitate to return colleague to work.” Under “Outcome summary of meeting” he recorded (Page 473 of the bundle): “Colleague refused to explain the reason for being absence I explain that if he would not explain I could not help and would need to ask the [General Manager] to withhold pay. He stated his is not mentally fit to answer and would want CSP reasons and go from there.” 96. On 18 October 2017, the General Manager, Ms S Hammond, reviewed Mr Well’s form and decided that Mr Zerehannes would have his CSP withheld. She noted in the letter setting out her conclusions as follows “The meeting was to discuss the specific reasons for recommending the suspension of your Company Sick Pay. To clarify the reason for the suspension of your CSP was: “ * Reasonable belief of abusing the CSP Scheme.” 97. Mr Zerehannes provided a sick note dated 20 October 2017 citing that Mr Zerehannes would be unfit to attend work because of stress at work until 17 November 2017. That note was submitted to the Respondent at the time, as required by the sickness and absence policy. Grievance 98. On 24 October 2017, Mr Zerehannes lodged a formal grievance with Ms N Hersey, who is an HR Manager, saying as follows: “I have decided today to bring forth a formal grievance against the ongoing discriminatory treatment that I am experiencing at work and which is a cause of my current health condition (stress), to invoke the Company policy and ACAS Code of practice. “The business is aware that my wife is suffering from Acid reflux which affecting her Asthma and she was put under medication therefore the need of my presence at home to help her and to take care of my children consequently, I have requested flexible working hours under Section 80F Employment Rights Act 1996 and also the request was made in relation to the Equality Act 2010 on ground of my wife disability.” It is quite apparent he was aware of the existence of and rights under the Equality Act 2010 as of this date. 99. Mr Zerehannes set out in that letter the history of the case in great detail. He ended the letter by saying: Case No 2600155/2018 2601886/2019 Page 45 of 96 Mr Alexander: Do you have any names of colleagues who have been granted like for like request like yours” Mr Zerehannes: “Last year there was some due to family issues but in general plenty.” 109. Again, it is notable that Mr Zerehannes simply alleged racism and victimisation based purely upon feeling . We noted that when he was asked the direct question of who has been treated in the way you would like to be treated, he was unable to provide any details, other than to make general assertions that there are colleagues who have been treated more favourably. Mr Alexander’s investigation 110. Mr Alexander commenced an investigation and during the investigation he spoke to Mr A James, Mr S Wells, Mr W Forster, Mr S Nagra and Mr D Binks. Their explanations accorded with the documents we have seen, and that the failure to deal properly with the application in the first place was an innocent and genuine error. None of them said anything that even hinted that there might have been a discriminatory factor in play or any factor that could amount to a protected act in play. The Tribunal is quite satisfied that Mr Alexander has spoken to all the relevant people and has conducted proper and thorough grievance interviews. Although we have not quoted the grievance interviews in detail, it is quite apparent from reading them that he has covered the issues that Mr Zerehannes raised in his grievance, namely the failure to allow Mr Zerehannes to work flexibly; the fact that meetings did not appear to have gone ahead and the delay in dealing with his request. 111. One area Mr Alexander did not ask about but which Mr Zerehannes had raised was whether race, Mr Zerehannes’s wife’s asthma or complaints of discrimination played a role. Mr Alexander accepted that he should have asked. We agree he is right to concede this. However given the detail he went into about what happened with the witnesses, it is apparent Mr Alexander was not seeking to cover events up. That is demonstrated by the action he took with Mr Foster and Mr S Nagra over their errors. He was genuinely trying to understand what had occurred. The omission of this important topic was a big, but innocent mistake, in that it was not motivated by malice, race, disability or previous claims of discrimination. Outcome of grievance hearing 112. The grievance meeting resumed on 15 November 2017 to provide the outcome. 113. At that meeting, Mr Zerehannes was told that his grievance had not been upheld. 114. Mr Alexander had prepared a document from which he read his conclusions to Mr Zerehannes. Mr Zerehannes signed that document to confirm that that is what was said to him. The adjournment note sets out the history of the case and the details of Mr Zerehannes’ complaint. 115. In his conclusions, Mr Alexander accepted that there had been issues up until 10 September 2017 but found that since Mr Zerehannes had lodged Case No 2600155/2018 2601886/2019 Page 46 of 96 his appeal on 17 September 2017, Asda had done everything possible to hear his case. Mr Alexander noted that Mr Zerehannes had refused to explain his reasons for absence at the meeting on 6 November 2017 with Mr Wells and had even prevented his representative from answering those questions in his behalf. 116. In particular, Mr Alexander recorded as follows at page 527: “I believe that with regard to the period between the date of your initial letter requesting flexible working on 29/4/17 until the date of the initial meeting to hear your request on 10/9/17 that [Mr W Foster and Mr S Nagra] were responsible for failing to deal with your request within the correct timeline which you correctly stipulate as 28 days, although this is 28 days from application from not initial request letter. I would like to apologise on behalf of the company for this and any impact on your family and health that this may have caused. I believe this to be totally unacceptable and as a result, I shall be recommending the matter be followed up with the necessary action and coaching as deemed necessary. I would also like to add though that during this period, given the nature of the lengthy delay I believe this matter would have been dealt with sooner if you had escalated your dissatisfaction to a Shift Manager earlier, especially given that you stated that you felt the matter was impacting your health as early as July. I would also add that any delays or frustrations caused by your dealings with the GMB reps involved are a matter between yourself and the GMB. “In addition to the timeline during this stage of your request I also am concerned about other issues raised such as the undated self-assessment form, the undated invite letter to a meeting for the 2/6/17 which incorrectly states your request was received on 28/5/17 and the brief nature of the adjournment note outcome for which there is no evidence to confirm was ever formally delivered. Again, I believe this is totally unacceptable and will be recommending that action & coaching takes place. Mr A James consulted his diary and confirmed he met with you on 14/9/17 but could not recall the exact nature of the conversation…. “… “You also asked me to respond to the following questions “… “3) Can you provide to me the circumstances which permitted the company to grant many colleagues flexible working hours. “The company dealt with many flexible working requests for many different reasons. Decisions will depend on what is requested and what the circumstances are. In terms of your specific request of moving from 3 out of 4 weekends to 2 from 4, I can confirm that whilst some of these requests have been granted in the past, the demands of the business has dictated that none of these requests have been granted for over a year. “… “I would also caution you with regard to making serious allegations, such a racial discrimination, without any evidence at all other than to say this is how you felt. I find that whatever errors were made, they had absolutely Case No 2600155/2018 2601886/2019 Page 47 of 96 no bearing on the colour of your skin as you allege. I also believe there is no evidence to support allegations made of discrimination of victimisation. “I would like to remind you that you still have an outstanding appeal regarding your flexible working request and would urge you to liaise with your [Shift Managers] to arrange this a soon as possible.…” Further signed off work 117. On 17 November 2017, Mr Zerehannes was signed off by his doctor as unfit to attend work because of stress at work. Appeal against grievance outcome 118. On 23 November 2017, Mr Zerehannes wrote to Ms N Hersey lodging an appeal against Mr Alexander’s grievance outcome. 119. So far as is relevant to this case, Mr Zerehannes alleged “5. It is discriminatory for Mr P Alexander to stated that I had an opportunity for appeal to be head (sic) on 20/09/17 and that I stated that this meeting did not go ahead to my chose (sic) Rep, Ms S James not being available even though an alternative GMB Rep could attend as my case was that: “… “6. It is discriminatory for Mr P Alexander to accept [Mr A James’] evidence that he recalled that I advised him that I did not wish for the appeal to be heard prior to my holiday particularly; [Mr P Alexander] has failed to properly examine my evidence that Mr A James initially rearranged the meeting on 04/10/2017 and after checking his Computer, he realised that I was supposed to be on annual leave … and secondly, as no reason was given to his acceptance of Mr A James’ evidence. “7. It is discriminatory for [Mr P Alexander] to accept Mr A James’ evidence that when he was arranging the appeal with me, I was talking about my upcoming holiday and that Mr A James gave me the option of hearing my appeal prior to my holiday … “8. It is discriminatory for [Mr P Alexander] to accept [Mr D Binks]’ evidence that he believes he verbally offered to hear my appeal to which I replied that I would prefer the following week. … “9. It is discriminatory for [Mr P Alexander] to state that [Mr D Binks] added that he offered to hear my Appeal at a subsequent depot visit because my only depot visit meeting on 15/10/17, was conducted by Mr W Foster and not Mr D Binks and secondly; even if Mr D Binks was the manager who conducted that wellbeing meeting; the purpose of the wellbeing meeting was not to deal with my Appeal. “10. It is discriminatory for [Mr P Alexander] to state that Mr S Wells has stated that I refused to fully explain the reason for my absence from work as my case is that :… “11. It is discriminatory for [Mr P Alexander] to state that Mr S Wells has stated that I even prevented my Rep from answering on my behalf however, the notes of the meeting on 16/10/17 recorded that I said “could I please ask that Scott James to explain everything as I am too stressed out with the Case No 2600155/2018 2601886/2019 Page 50 of 96 “PS: Prior to that time, do you believe you have been discriminated against. “SZ: Yes, due to my race. “… 122. Mr Statham later asked Mr Zerehannes if he had any examples of colleagues who have changed their shifts after he made his request to change shifts. Mr Zerehannes then gives the following examples: “Ali, don’t know last name, works on late shift he does battery change sometimes. Take up generally, flexible workup request don’t take that long. LKa was granted before my request, another one is DSW, he was given flexible working hours. H, late shift, SS, SJ, Abdulla. All these colleagues changed from 3 weekends to 2. AM, SBq, TuGm, those people granted flexible working, all got a response within 28 days. My circumstances were exceptional and didn’t get a response for 5 months. I work here for 5 years 2 years agency, 3 years full time. I did not request this before, circumstances changed due to my wife’s health I requested this, I was not given a reason why it has refused and why it took so long did and now the sick pay is suspended to shift their failure on me.” 123. The Tribunal notes that on Mr Zerehannes’s own admission, some of these people were granted flexible working before his request, and some after. We note he did not identify all of these as comparators for the purposes of this claim. While we have amended the names to initials (because these are fellow employees only tangentially involved in the case) the Tribunal notes that the names suggest a range of different ethnicities of people who have been granted flexible working requests. The Tribunal also notes that Mr Zerehannes gave no regard in his answer to the restructuring exercise that took place which we described earlier in these proceedings, or that he did not complain about the outcome at the time. Failure to attend occupational health appointment and meeting on 11 December 2017 124. Mr M Turner asked Mr Zerehannes to attend the IDC on 11 December 2017 for a meeting about his CSP and for an occupational health assessment. Mr Zerehannes sent an email to [Ms Z] Small, People and Community Administrator at the IDC to saying “I can’t attend the depot visit because I could not find a colleague to give me a lift and because I am not feeling well.” 125. He could easily have contacted Mr Turner but, in what seems to be part of the pattern of petulance, he did not. Events 12 to 14 December 2017 126. On 12 December 2017, Mr Turner emailed Mr Zerehannes and said (page 565): “Due to the confusion on the telephone call that took place on the 09/12/ 2017. I would like to invite you to a further company sick pay review for failing to attend an OHA appointment on the 05/12/2017. The meeting will be conducted by [Mr C Small], shift manager on the 14/12/2017 at 18:00. Case No 2600155/2018 2601886/2019 Page 51 of 96 If you could please confirm that you will be attending that would be apricated.” Mr Zerehannes replied that day: “I have not received any notification to attend an Occupational Health appointment on the 05/12/2017, unless you will refer me to the date of the text message or email being sent to me in this regards. “It is unfair for you to invite me to a company sick pay review meeting when the company has stopped or suspended my company sickness pay leading me to struggle with my transport, bills etc… which is aggravated my health conditions. “I am willing to attend the arranged meeting on the 14/12/2017 at 18:00 provided [Mr Zerehannes’ emphasis] that I will receive an email or text message from you, confirming that the business will provide me a return transport (taxi) and [GK] will be in to accompany me to that meeting.” 127. The same day, Mr Turner replied: “As per our Absence policy you will have to sort your own transport to and from work.” 128. The next day, Mr Zerehannes replied: “Further to your second email … in which you referred to company policy, I write to request the following information or documents. “1. An employee (A’s) Application for flexible working hour on grounds of his wife’s disability is not to be allowed. “2. A copy of the company Absence policy stating that an employee (A) who is off sick due to work related stress will have his company sick pay suspended. “3. Employee (A) has to sort his own transport to and from work in order to attend a sickness review meeting despite not having money for his transport. “4. Right now I don’t have money to travel to [the IDC] therefore, I request the meeting being arranged in my flat after providing me with copies of all requested documents above. … “6. I would like to invite you to firstly arrange an appeal meeting in relation to the suspension of my company sick pay before the sick pay review meeting. Please, can you arrange it in Coventry. “7. Thank you for providing me with your telephone number so we can discuss however, I would prefer to reply to your email by emailing you due to my understanding of English.…” 129. We think it would have been clear to Mr Zerehannes that Asda does not have a policy that says an application for flexible working hour on grounds of a wife’s disability is not to be allowed, an employee who is off sick due to work related stress will have his CSP was suspended, or an employee has to sort his own transport to and from work in order to attend a sickness review meeting despite not having money for his transport. His request Case No 2600155/2018 2601886/2019 Page 52 of 96 showed us that Mr Zerehannes ignored the reason his flexible working application had been dismissed, why his CSP was suspended or overlooks the reality it was his responsibility to get himself to work at the IDC. It showed us that Mr Zerehannes is prepared to twist things, or even create a “straw man” to seek to get his way, and is further evidence of his unreliability as a witness. 130. On 14 December 2017 Mr Turner replied: “I will look into the points that have be raised however I must inform you that failure to attend this CSP review today will mean that no mitigation will be given and this may affect the outcome. “As previously stated this meeting will be carried out By [C] Small, shift manager at 18:00 today. (14/12/2017).” 131. On 14 December 2017 at 16:24, Mr Zerehannes emailed Ms Z Small (who we note is not related to Mr C Small) saying “For attention of [C] Small “Dear [C] Small, “I write to request a postponement of the review meeting on 14.12.2017 at 18:00 because right now my wife has respiration problems caused by her disability therefore, I have to take care of my children secondly, also request you provide me with documents and information which requested to [Mr Turner] on 13.12.16 to help me to prepare that meeting. “It is unfair for [Mr Turner] to say that you will look into the points that I have raised during the meeting because I have right to have company police before that meeting.…” 132. The Tribunal notes that there are plenty of previous emails in the bundle that show Mr Zerehannes had Mr Small’s email address and that he knew Mr Small would be conducting the meeting. He could very easily have emailed Mr Small directly. There is absolutely no explanation therefore as to why Mr Zerehannes decided to send this email requesting the postponement to Ms Z Small. We conclude this is yet another example of petulant behaviour trying to frustrate a process because he was not getting his own way. Further signed off work 133. On 15 December 2017, Mr Zerehannes’ doctor said that he was unfit to attend work due to stress at work. He was signed off until 2 January 2018. Mr Turner’s chasing of Mr Zerehannes to make contact 134. On 27 December 2017, Mr Turner wrote to Mr Zerehannes: “I note that we have attempted to call you on 18/12/2017 and 27/12/2017 however have been unable to make contact. “You should be aware that not being contactable is a serious breach of our absence procedures and therefore could result in the withholding of all or part of your entitlement to company sick pay and could also result in disciplinary action being taken against you. Case No 2600155/2018 2601886/2019 Page 55 of 96 I responded to him whatever we did discuss can be sent through email, but he didn’t want to put the phone down on me.” We accept this is accurate because it reflects the timbre of Mr Zerehannes’s emails and his attitude in general. 150. On 14 January 2018, Mr Zerehannes confirmed that he would attend Asda Abbey Park for the meeting on 17 January at 23:00. Mr Turner confirmed to Mr Zerehannes that he had arranged for Mr G N’Kshama to be his representative and confirmed that he would be picking him from home that day. 151. Unfortunately there had been a mistake made organising the meeting and it could not proceed. We are satisfied the mistake was not motivated by race, disability or the existence of complaints about discrimination because there is no evidence that links to the same or any reason we can think of that might suggest a link. On 17 January 2018 Mr Turner emailed Mr Zerehannes saying: “Sincere apologies however as mentioned on the phone to yourself there seems to have been an administrative error around the time of your meeting that was due to be held with myself. “Moving forward I would like to invite you to attend depot on 18/01/2017 at 15:00pm to discuss your absence and any support you require. In this meeting you are also entitled to representation. “We can discuss providing a lift to and from work if required. “If you could please confirm whether you will be able to attend this meeting and if required we can begin to look arranging any travel requirements.…” 152. The meeting did take place on 18 January 2018 albeit at 6:23. In the note of that meeting Mr Zerehannes said that he was not doing very well; that he had been to see his general practitioner and that he had had to take up counselling. He said that his stress was impacting on his sleep. He confirmed that he would be happy to attend future occupational health appointments and he was willing to attend IDC visits and that future meetings that take place at the IDC. A note was added to the record that Mr Zerehannes asserted he had never refused to attend occupational health appointments. 153. On 23 January 2018, Mr Turner wrote to Mr Zerehannes confirming that he does not need a form SSP1 because he was being paid statutory sick pay through his wage slips. He also noted that it appears that Mr Zerehannes was missing one week statutory sick pay for December and undertook to look into the reason for that. 154. At the end of January, Mr Zerehannes and Mr Turner agreed that Mr Zerehannes would attend an occupational health assessment on 7 February 2018 and that Mr N’Kshama would provide transport to and from the depot for Mr Zerehannes. Further signed off work 155. On 2 February 2018, Mr Zerehannes’ doctor declared that Mr Zerehannes was unfit to attend work because of stress at work for a period of one month. Case No 2600155/2018 2601886/2019 Page 56 of 96 Unfortunately, the doctor did not include any actual dates on the form and therefore it could not be processed, and he was asked to provide a second sick note properly completed by the doctor this time instead. He provided it on 15 February 2018. Further grievance of 6 February 2018 156. On 6 February 2018, Mr Zerehannes lodged another grievance, this time sending it to Ms Z Small. His complaint related to the way that he felt Mr Turner had improperly treated him in relation to CSP. He set out the history of the case pretty much quoting the emails word for word. He also said: “15. On 18/01/18 I attended a depot visit and meeting started with [Mr Turner] by asking me how do you feeling? I replied, “I am feeling very bad due to your stressful treatment towards me.” However, [Mr Turner] wrote [Mr Zerehannes] is doing is doing very fine which means it is not acceptable to change my words on his own interpretation. The way he treats me is a racial discrimination through all his time. Finally, the managements are failed to deal with my case, due to this it impacted my current health condition (stress related work) to the worst level. Management and the company have a duty of care towards employees, but in my case it is all breached.” 157. Again, although this freely makes the allegation of discrimination against a company employee, at no point does Mr Zerehannes even set out the basic foundations of how he says that there is any evidence that what happened was because of his race. We can see no reason to justify Mr Zerehannes’s conclusion that what Mr Turner was alleged to have done (and we assume for present purposes without deciding it happened as Mr Zerehannes described) was motivated in any way by race. Missed occupational health appointment of 7 February 2018 because of traffic 158. Mr Zerehannes did not attend his occupational health appointment on 7 February 2018. It appears that he missed it because of problems with traffic. Mr Turner agreed that he would seek to get a new date for Mr Zerehannes. This was confirmed by the occupational health report itself, which noted that when they telephoned Mr Zerehannes, there were issues with traffic. Identification of who was to conduct the grievance meeting 159. On 12 February 2018, Mr James, a Shift Manager, invited the Claimant to a grievance meeting to take place on 26 February 2018. 160. On 14 February 2018, Mr Zerehannes emailed Ms N Hersey, Ms K Hallam and Ms Z Small a letter in which he requested that somebody else be appointed to deal with his grievance other than Mr James because he had the grievance already outstanding against Mr James. He also asked that the matter be rearranged so that he could be supported by George N’Kshama. Further grievance 161. In the same letter of 14 February 2018 Mr Zerehannes raised a grievance against Case No 2600155/2018 2601886/2019 Page 57 of 96 161.1. Mr Statham regarding the grievance appeal meeting on 5 December 2017, and 161.2. Ms N Hersey’s email on 12 January 2018, the gist of which is that Mr Statham failed to provide the grievance outcome in a timely manner because he was investigating matters still. 162. Again, he requested transport to the IDC if meetings were to take place there or, alternatively, that the meetings take place at the Asda store at Abbey Park, Coventry. Confirmation of occupation health attendance if travel provided 163. On 15 February 2018, Mr Zerehannes provided the correct sick note confirming that he was away from work from 2 February 2018 until 2 March 2018 due to stress at work. He also confirmed in the covering email that he could attend an occupational health appointment on 28 February at a 15:15 but that return travel would be arranged for him. Ms N Hersey confirmed change of person hearing grievance and tried to tidy up proceedings 164. On 19 February 2018, Ms Hersey emailed Mr Zerehannes confirming that the Respondent was happy to change the manager allocated to hear the grievance. She wrote as follows: “I hope you are well, apologies that it has taken me some time to reply to you, I have been looking at your queries raised in your letter dated 14 th February 2018. “I am happy to change the manager allocated to hear your grievance raised on 6th February 2018, I will be speaking with the operations manager this week and we will ensure we find an appropriate manager to hear this. I have however noticed that there seems to be a lot of points raised on this grievance that are duplicated from your previous grievance raised on 29th December 2017 which Mr P Statham is currently investigating, I will therefore ensure that we hear this grievance (6th February) following the outcome of your outstanding grievance (29th Dec) to ensure we do not get things confused. “In relation to your formal complaint dated 14th February 2018, I would please ask that this is raised as part of either your appeal if you choose to appeal the outcome of your grievance raised on 29th December or raise this as part of your new grievance raised on 6th February to save things getting confusing by having loads of open processes running simultaneously. “Having looked into this grievance (14th February), although not an ideal time delay, I am comfortable with a delay due to the nature of your grievance points raised, some of your allegations are very serious and therefore we need to ensure that they are investigated thoroughly, as Mr P Statham does not work for the IDC and is completely independent it may take more time than usual as he will not be aware of our processes in full and further investigation may be required. I have remained in contact with Paul weekly to check progress and I can assure you that we will be hoping to finalize this week. Case No 2600155/2018 2601886/2019 Page 60 of 96 unreasonable. We have read the email. Like all the others it is simply bare assertion without any attempt to set out what facts led him to that conclusion. Outcome to grievance appeal 172. On 27 March 2018, Mr P Statham provided the outcome to the grievance appeal. The grievance appeal outcome letter is 11 pages in length. The Tribunal has read it in detail and is quite satisfied that Mr Statham has given full and proper consideration to the allegations that Mr Zerehannes has raised. This is demonstrated by the fact that he has gone through Mr Zerehannes’ lengthy grievance letter in detail and set out his responses under each particular section. We could detect nothing that led us to conclude it was dealt with by him superficially. 173. The Tribunal notes in particular the following sections (Mr Zerehannes’s allegations are underlined) “c. [Mr P Alexander] has failed to refer to my case that [Mr W Foster] and [Mr S Nagra] were trained to deal with all employees equally and not to discriminate certain in dealing with requests made by certain employees. “When I asked you under what basis you feel that you have been discriminated against you informed me that it was due to the colour of your skin. There has been no evidence supplied by yourself in either the grievance hearing or the grievance appeal hearing that would suggest that the length of time taken to complete your flexible working request was down to the colour of your skin, suggesting discrimination. This has been a mistake made by two Department Managers and the corrective action required has been taken with them. “5. It is discriminatory for [Mr P Alexander] to state that I had an opportunity for appeal to be heard on 20/09/2017 and that I stated that this meeting did not go ahead due to my chose Rep, Scott James not being available even though an alternative Rep could attend as my case was that… “The flexible review appeal meeting was planned for 20/09/17, your chosen representative … was not available [however] [Mr GR] who was also a GMB representative was available. This is a fact that has been confirmed by you. I can see no evidence why [Mr P Alexander]’s statement is wrong or any evidence why it was made due to the colour of your skin, suggesting discrimination.…” 174. Thus Mr Statham concluded that the fact that a trade union representative was available on 20 September 2017 meant that the meeting could indeed have gone ahead. However moreover, there was (and is) no evidence to suggest that Mr Alexander’s conclusions were reached because of discrimination or victimisation. 175. Mr Zerehannes had complained that Mr A James had acted in a discriminatory manner, did not consider discrimination and asked what training Asda had given to Mr James about discrimination. Mr Statham however noted that Mr Zerehannes did not even raise allegations of discrimination until after the meeting with Mr James had taken place and therefore Mr James never had any discrimination allegations to deal with. Case No 2600155/2018 2601886/2019 Page 61 of 96 176. Overall Mr Statham concluded that there was no evidence that the Mr Zerehannes’s skill colour in Mr Alexander reaching his conclusions, nor did the fact Mr Zerehannes had raised allegations of discrimination before. The Tribunal has considered the complaints and agrees that no such evidence existed apart from Mr Zerehannes’s bare allegations. 177. In response to the question as to why Mr Zerehannes was not granted flexible working, Mr Statham says: “You were not granted flexible working hours to assist your wife because of the reasons that [Mr P Alexander] has highlighted. Whilst we have to consider your request we do not have to grant the request. Whilst requests from other colleagues in the past have been granted, none have been granted after your request. The last request that was granted was also refused at the initial meeting and his decision was changed at the appeal stage. Each flexible working request is judged on its own merits. [Mr] Alexander’s response to the request is correct, by allowing you a further weekend off incurs additional overtime and weekends to cover it. I also refer you to my earlier answers, if your wife can look after the children for 2 out of 3 weekends I can see no evidence to suggest why she couldn’t look after them for 3 out of 4 weekends.” 178. He continued “It is clear from the timelines highlighted that the managers involved could have resolved your flexible working request quicker and the appropriate action has been taken in accordance with your [disciplinary and grievance] policy. I do not see any evidence that suggests that this delay was due to discrimination, in that it was due to the colour of your skin. You have provided me with no evidence to suggest that this is the case. I have answered each of your points in turn and I believe [Mr] Alexander carried out a thorough grievance hearing and his answers are reasonable. I can find no evidence of discrimination throughout his grievance hearing or decision. Based on the fact that you have not submitted a previous grievance or complaint of discrimination means your claims of victimisation are unfounded.” 179. The Tribunal has been shown nothing that undermines this conclusion and nothing emerged in oral evidence to undermine it either. Further signed off work 180. On 3 April 2018, Mr Zerehannes submitted a further sick note confirming that he was unfit to attend work until 1 May 2018 due to stress at work. Appeal against refusal of flexible working request 181. Mr Zerehannes did appeal his flexible working request. The appeal was fixed to take place on 16 April 2018 and to be heard by Mr Binks. Unfortunately, the letter did not contain a time for the meeting and Mr Zerehannes did not receive the invite in time anyway. That meeting was then rearranged for 25 April 2018 at 20:00. Case No 2600155/2018 2601886/2019 Page 62 of 96 Further grievance 182. On 19 April 2018, Mr Zerehannes submitted a letter to Ms S Hammond but sent instead to Ms K Hallam, Ms Z Averns and Ms N Hersey. There is no explanation why he did not send it to the intended recipient. It seems again that Mr Zerehannes was simply wishing to be awkward. In the letter he wrote: “Further to [Mr P] Statham, Operation Manager’s Outcome letter dated 27/03/2018, I write to complain of being racially victimised for raising grievances about race discrimination because the contents of his outcome letter is itself constitute an act of victimisation. [Mr P] Statham’s Outcome letter or decision on 27/03/2018 is final therefore, there are no further stages to the Appeal process however; I was shocked to read his statement that: …[Mr S] Wells recommended to you to withhold my CSP which to date I haven’t appealed against. Whilst I am out of time to appeal against this decision you would still hear the Appeal if I submit the Appeal in writing to [Ms S] Hammond.” I would like to know the reason why my letter to [Ms N] Hersey, People Manager dated 24/10/2017 is not regarded as a written Appeal against the suspension of my sick pay particularly; the last paragraph of that letter is read “Finally, the facts above or this grievance is also to be regarded as my appeal against the suspension of my sick pay which is due to the company’s handling of my request for flexible working hours and it is itself racial discrimination and associated disability discrimination on grounds of my wife disability”. If you do not consider that last paragraph as my written Appeal against the suspension of my sick pay therefore, I would like to know the reason why and second, I invite you to consider this current letter and the contents of my letter to [Ms N] Hersey, People Manager dated 24/10/2017 as my written Appeal against the suspension of my sick pay.” 183. The Tribunal notes that yet again, Mr Zerehannes has freely made allegations of being subjected to discrimination and victimisation but provided no detail or evidence to show that his race or previous complaints have played any part. Arrangements for the grievance meeting with Mr Binks 184. On 19 April 2018, Mr Zerehannes emailed Mr Binks. He was concerned that Mr Statham had made the observation that if his wife could look after the children for 2 out of 3 weekends, he could not see why his wife could not look after the children for 3 out of 4 weekends and was therefore concerned that the appeal meeting was going to be a formality because Mr Statham is senior to Mr Binks. 185. On 24 April 2018, Mr Binks said to Mr Zerehannes in an email that it was for him to make arrangements for the representative to be present and confirmed that they would not be providing transport to the IDC because it is his responsibility to provide his own transport for an appeal that he has requested. 186. Mr Zerehannes replied in the following terms: Case No 2600155/2018 2601886/2019 Page 65 of 96 there. The is nothing in the occupational health reports or elsewhere that justifies the need to provide transport. 194. We again note that he makes an allegation that his stress all results from racial discrimination, including disability discrimination from his wife’s disability but, again, provides absolutely no evidence that this is the case. We also note that now he appears to be insisting on a Bilen-English interpreter as requested previously. We can see no justification in that request. At danger of repeating ourselves, we note he has communicated perfectly well with everyone beforehand in meetings as the notes have disclosed and in his own lengthy letters. Appeal against refusal of flexible working on 2 May 2018 195. The appeal against the refusal for flexible working was heard on 2 May 2018 by Mr Binks at the IDC. In that meeting the Tribunal notes that Mr Zerehannes was represented by Mr N’Kshama and that Asda had agreed that Mr Tekleab could act as the translator. Mr Zerehannes had nominated Mr Tekleab. We think it is further evidence of Asda’s attempts to be reasonable, cooperative and resolve the real issues that they compromised on this issue, even though it seems the request was not justified. 196. Although Mr Zerehannes raised concerns about whether Mr Binks would be fair and impartial, after discussions Mr Zerehannes confirmed he was happy for the meeting to continue. 197. The appeal meeting went into the details of the flexible request and Mr Zerehannes said as follows: “… The way they handled it was victimisation and it is racial discrimination, they should let me know in writing my refusal reason. It continued “Mr Binks: Tell me what the initial request was for? “Mr Zerehannes: To go from 3 weekends in and request to go to out of 4 weekends to support my wife with the kids rather than working 3 weeks. She was struggling. Asda have a duty of care towards the colleague but my application was overlooked by the company management.” 198. Mr Binks then enquired as to the age of the children, the length of Mr Zerehannes’s wife’s illness, that his wife looked after the children, who were at school during the weekday. 199. Mr Binks asked: “Your wife will still have 2 weekends to cope so it is not an impossible situation to cope with?” Mr Zerehannes replied: “The problem is 3 consecutive weekends, but if I can try 1 weekend in and 1 weekend off to see how the condition improves or not. If it becomes worse then I may have to do Monday to Friday, you never know.” 200. Mr Binks then went on to enquire into Mr Zerehannes’ wife’s condition. 201. Mr Binks then asked: “Did you ever consider changing shift to facilitate your needs? Case No 2600155/2018 2601886/2019 Page 66 of 96 “Mr Zerehannes: I clearly stated on page 4 of the [flexible working request] form I have given many options but never seriously considered my application by the company and the management and this is victimisation and disability discrimination due to my wife’s disability. “Mr Binks: Is she classed as disabled officially? “Mr Zerehannes: “According to the law she is. “Mr Binks: What law is that? “Mr Zerehannes: Under the Equality Act 2010. “Mr Binks: Are you saying asthma is classed as a disability or your wife has been classed a disabled by a medical professional? “Mr Zerehannes: If somebody is physically or mentally impaired more than 12 month’s then the law states this is disability which is her sickness is permanent and she will be struggling forever. Everyone knows asthma is a dangerous condition and a killer. “Mr Binks: Have you considered whether another shift would be more in line with your needs? “ “Mr Zerehannes: The morning shift all the time, I have to wake up with my children, dress them, breakfast and take them to school. This would be key to help her with this. On the night shift, I wouldn’t prefer night shift because I have seen my wife struggling during the night. But on late shift, this is the only one I can accept. And if this request was offered it would be very nice. “Mr Binks: Is there anything else you wish to add before I adjourn? “Mr Zerehannes: No.” 202. The Tribunal was struck by the juxtaposition of someone who was now saying they required an interpreter being able to refer to the Equality Act 2010 and give a good description of the test of disability under that Act including the reference to physical and mental impairments, which are not normal English. It again tends to support the fact his linguistic abilities are not as bad as he seeks to imply. Moreover though it reaffirms that on 2 May 2018 he was aware of the Equality Act 2010 and by implication rights that arose from it or that he ought at least to investigate it further. Appeal against withholding CSP on 2 May 2018 203. The Company sick pay appeal also took place on 2 May 2018 and again at that meeting, Mr Zerehannes was represented by Mr N’Kshama and Mr Tekleab acted as the interpreter. Mr Gamble noted that in the appeal there were allegations of direct discrimination and harassment and said that they were being investigated separately so he was not going to deal with those but leave those to a separate grievance. 204. Although Ms N Hersey was taking notes and was herself the subject of grievances, Mr Zerehannes confirmed that he was happy for her to attend and take notes at this meeting. In short, Mr Gamble allowed the appeal against the stoppage of CSP to a limited extent. He noted that the occupational health report on 28 February 2018 confirmed that Mr Zerehannes was ill and unable to attend work. He noted it accorded with Case No 2600155/2018 2601886/2019 Page 67 of 96 Mr Zerehannes’ doctor’s fit note. He therefore decided CSP would be reinstated from 28 February. 205. He came to the conclusion that any delays until that point however, such as non-attendance at occupational health assessments or meetings were entirely the fault of Mr Zerehannes. He therefore had failed to follow the policy and Asda should not exercise its discretion to pay CSP. Outcome of flexible working appeal 206. On 7 May 2018, Mr Binks replied to Mr Zerehannes’ appeal against refusal of his flexible working request and, so far as is relevant, he wrote as follows (page 665): “I have reviewed your appeal in full and these are my findings:- “I fail to see how increasing the amount of weekdays improves your situation as your wife would still need to care for the children between 15:00 and 19:00 on the extra weekdays you would have to work if you worked less weekends. You also have all the school holidays to consider as your children would be at home all day. So this would be no different than a weekend day in that respect. “I cannot get too involved or judgmental regarding your wife’s condition as I am not in a medical position to do so but you have confirmed you have not sought any external assistance and the situation you describe does not indicate that your wife cannot look after the children with regards to the duties required, you describe to me a more desirable position to be in if the opportunity arose. “You go on to say that you cannot confirm your position would change even if you did work less weekends and that you might need to request working weekdays only and no weekends and this demonstrates to me that changing your current rota would also not resolve anything for sure. “… “You signed your contract and were employed to work 3 weekends from 4 for the specific reasons to cover the depots needs to support our weekend workloads and this demand has not changed. it is very often that we are in a position to allow extra holidays during the weekdays but very rarely if ever at all at weekends so this also supports the requirement to adhere to your current rota as we do not require more colleagues in on week days and less on weekends. “We are currently employing for our other depots nearby at ADC and CDC and the vacancies are all offering 3 weekends from 4. This also supports the business as a whole is working toward the same goals, which is to secure our service to stores by having the workforce available at the time of when we need them. “So with this in mind, my decision is to uphold the original decision to refuse your request and inform you that you will need to remain on your current rota for which you were initially employed, which was made to support the company’s business needs.… Case No 2600155/2018 2601886/2019 Page 70 of 96 fact that he had raised allegations of discrimination or his wife’s disability. The meeting was fixed for 28 September 2018. Complaint about restriction on working elsewhere during career break 222. It is a term of Asda’s career-break scheme that if an employee wishes to work elsewhere, they require Asda’s written consent. This makes sense to us. We can see why, for example Asda might not be impressed with one of their workers working for a rival business. We think this is fair. If an employee wants to take a break from working that is one thing. If they are able to provide service then it seems only right their current employer should have first call. If the employee wants a break without that restriction, they are free to resign. 223. On 7 September 2018 shortly before the grievance meeting, Mr Zerehannes wrote to Mr Turner referring to that condition of the career break. Having alleged now that the work-related stress and anxiety was now caused by acts of race discrimination and/or disability discrimination, he went on to say at paragraph 4: “4. As previously informed, I reserve my right to find any paid job to fund my family trip to my Country-Eritrea in August 2019 and thus is on the grounds that I have been unlawfully treated by ASDA Lutterworth IDC Depot’s Managers causing me to request a Career Break alternatively; I request to be transferred to one of the ASDA – Coventry Stores because: “4.1 This will increase myself esteem, mental well-being and as well as financial stability (and to fund my family trip to Eritrea in August 2019). “4.2 This will have substantial positive benefits for my wellbeing and rehabilitation and could also prevent potential relapse as I will not be in contact to those managers who committed those acts of discrimination which led to my health conditions. …” 224. At the same time he submitted a formal application to transfer his employment to the Coventry store. The resumed grievance hearing on 28 September 2018 225. The grievance meeting with Mr Farooq took place on 28 September 2018. He explained that the reason he had taken over was that during the course of that hearing there were concerns raised about how Mr James conducted the hearing and about Ms N Hersey being involved (even though no complaints were made at the time). He explained that he was an Operations Manager who had stepped in to take over and that Ms Hallam had been appointed in place of Ms Hersey to take notes. 226. Mr Zerehannes confirmed that he was content for the meeting to continue with Mr Farooq conducting it. 227. The meeting itself was significant and lengthy in its content. During the course of the meeting, Mr Zerehannes went into detail about his desire to change his shift pattern and the history. We have considered it but see no merit to repeating it here. 228. When asked about discrimination, however, Mr Farooq said: Case No 2600155/2018 2601886/2019 Page 71 of 96 “I completely understand your point around the delay of the outcome and let’s say going against policy but I’m failing to understand who is this racial discrimination, would you please substantiate that. Mr Zerehannes replied: “Everything for me is racial discrimination. She [i.e. Ms N Hersey] would never ever treat if I was white British, never. I have got all the emails I will highlight, that in a copy of the email …” He then handed Mr Farooq a copy of an email of 12 January 2018. 229. This related to emails from Ms N Hersey who was following up Mr Statham’s grievance investigation. Again, it is notable that the highest that Mr Zerehannes’ allegations gets is simply that it is racial discrimination because he says it is. He adduced no evidence or points to nothing that even begins to suggest that he would have been treated differently if his race were different. It is, again, a bare allegation made without any attempt to support it beyond subjective belief. Complaint about the career break 230. On 2 October 2018, Mr Zerehannes wrote to Natalie Hersey in the following terms (page 692): “… Please consider this letter as my response to your letter of September 24, 2018. I do not accept that my request for a career break was given fair and reasonably consideration because the management have failed to examine and take in consideration that my ongoing work related stress and Anxiety were caused by the acts of racial discrimination or/ and disability discrimination committed by ASDA … and due to the Company’s failure to address my workplace stressors … “You say it is standard practice to receive 3 months’ notice my Application was approved. My position to this is that my Application was approved in breach of your standard practice to receive 3 months’ notice of Application because my career Application has been approved in bad faith as it has been approved to make my life miserable, without any source of financial revenue by stopping me to request to work elsewhere. “You said your policies are statements of principles and practices dealing with the on-going management and administration of the business therefore: my question is why my Application for flexible work; numerous grievances or/and complaints and career break application were not or/are not dealt with as per your policies’ timescale? “You then said Policies act as a guiding frame of reference for how the business to respond to requirements to comply with legislation, regulation and codes of practice therefore; my question is why my Application for flexible work based on my wife’s disability, numerous grievances or/and complaints were not dealt with in accordance to the legislation, regulation and codes of practice. “You asked me to contact [Mr U] Farooq … with the particular details of the work I wish to undertake including company I wish to work for, in what capacity and the hours and for how long (permanent or temporary) Case No 2600155/2018 2601886/2019 Page 72 of 96 therefore, I would like to request to be transferred to one of ASDA’s Stores in Coventry instead of undertaking work elsewhere.…” 231. The Tribunal finds that letter particularly difficult to understand since it is not structured in the clearest or most logical way. However, the Tribunal is particularly struck by the fact that it is Mr Zerehannes who has asked for a career break, has been granted a career break on a clear term he does not work elsewhere without written consent, agreed to that, and is now complaining about being granted what he sought. 232. The words “application has been approved in bad faith” are odd to say the least. The Tribunal has never seen person complain they got what they wanted from their employer was an act of bad faith on the employer’s part. In our view it is yet a further example of Mr Zerehannes setting out to create trouble and obstruction because he has not got his way. The fact he maintained this position at the hearing shows the unreasonable of his approach. 233. As for the suggestion that the career break with a condition that he cannot work elsewhere is somehow unfair, the Tribunal can see no justification for such a criticism. If he wants a break from work while still being an employee then that requires mutual agreement with the employer. As noted, the term of the break seems reasonable to us and accord with standard practice in employment. 234. However, we also note that he requested to work at the Coventry stores. We find that somewhat strange if the employer is as bad as he says and as racist as he says and discriminatory as he suggests and victimises him repeatedly, the idea of continuing to work for the employer does strike us as somewhat odd and further undermines his allegations that Asda is being institutionally racist. Attempts to find alternative employment for Mr Zerehannes 235. On 3 October 2018, Ms Hersey replied to Mr Zerehannes’ letter saying: “In relation to your request I have contacted our Coventry stores in relation to current vacancies. “I have been informed that they are looking to recruit shortly and will have positions available. The roles offered are a range of hours from part time to full time and will all include at least 1 weekend day per week. I am more than happy to arrange a meeting with the stores Deputy manager who is eagerly awaiting my response. “If I could please ask you to let me know by 5th October if you want me to arrange this meeting, these roles go very fast when they are advertised and the Deputy manager has asked that I respond to him by Friday.” 236. Mr Zerehannes replied on 4 October 2018 confirming that he wished to indeed take up this possibility. 237. On 10 October 2018, Ms Hersey contacted Mr Zerehannes saying Case No 2600155/2018 2601886/2019 Page 75 of 96 so forth but he also sets out in detail the allegations that have been made of racial discrimination and that there is in his opinion from the reading of the papers, no evidence to support the allegations was ever advanced by Mr Zerehannes. He also set out the points that would need covering, the points that have not been covered but must be and points that require further clarification. He also made some preliminary enquiries as to why it had taken so long for Mr Statham to send out his outcome letter and had a look through the demographics of those who had applied for flexible working requests and whether they had succeeded or failed or what they had resigned for. 250. There is one particular comment that Mr Tilley made in his notes that struck the Tribunal: “[Mr Zerehannes] seems reluctant to accept that people make genuine mistakes despite him having to clarify in the meeting dated 28/09 [Mr Zerehannes] has to make a correction of his wife’s birthday in fact being in September and not October. There seems to be no acknowledgment of the fact that we are all human and make mistakes.…” 251. We are satisfied that Mr Tilley had thoroughly prepared for the grievance appeal. He had clearly gone through the history and identified pertinent points. We think it impressive he had commenced enquiries on relevant matters that were plainly going to have to be looked into before the hearing itself. Mr Zerehannes does not attend the grievance appeal hearing 252. Mr Zerehannes attended on 11 December 2018. Unfortunately Mr Tilley had a previous meeting that overran. Although his meeting with Mr Zerehannes was scheduled to start at 17:00 it could not do so. 253. Mr Zerehannes left. He wrote as follows a note which was handed to Mr Tilley later on: “I came here for an appointment for 17:00 and I am now the time is 18:10 so I cannot wait more than this time.” The Tribunal notes there is no explanation as to why he could not wait more than this time. The Tribunal also notes that this meeting was taking place because of Mr Zerehannes’ request. It could have been an important step to resolve matters and the alleged stress at work. We think that Mr Zerehannes had no excuse to leave and his behaviour was a further example of his unreasonable conduct. 254. Mr Tilley made a note that recorded that he had asked Mr N’Kshama to go and see Mr Zerehannes and tell him that they were going to be late because the previous meeting was running late. The note also discloses that during a break in the previous meeting, Mr Tilley himself went to see Mr Zerehannes. He recorded in his contemporary note as follows: “ I decided to go and see [Mr Zerehannes] and greet him and say that I would be conducting the meeting shortly. [Mr Zerehannes] did not want to listen to what I had to say and stated it was unacceptable to be an hour late and he was not staying. I stated I had agreed to do it on the late shift as Case No 2600155/2018 2601886/2019 Page 76 of 96 he had requested due to his rep and translator being on this shift and we had plenty of time to conduct the meeting by the end of the shift time. He still refused and said it was not acceptable and was not listening when I was trying to explain that I had gone to a lot of trouble when my depot was very busy having done 2½ hours each way of driving in order to hear his complaint in a timely manner. I really cannot understand why this colleague was not prepared to wait when he alleges to have such a serious complaint.…” 255. We find this note is accurate. We come to this conclusion after weighing up the witnesses’ general credibility, the accuracy of the note and that the obstructive and petulant behaviour it describes appears to reflect Mr Zerehannes’s conduct throughout. Mr Zerehannes’s verbal abuse of Ms Knight 256. On 11 December 2018, Ms Knight, who is an HR Business Partner at Lutterworth IDC, met Mr Zerehannes for the first time purely by chance. He happened to be waiting for Mr Tilley to finish the previous meeting. She spoke to him in a friendly way. however Mr Zerehannes became very aggressive towards Ms Knight. He shouted at her. He was abusive towards her and solely blamed her for the meeting with Mr Tilley not going ahead on time. 257. Mr Zerehannes’ conduct was out of all proportion and totally unreasonable. It left Ms Knight shaken and upset. 258. Mr Zerehannes denies this. We reject his denial and prefer Mr Knight’s version of events. Firstly she is more believable than he is for reasons outlined above. Secondly the idea it is someone’s fault that he has to wait fits with the fact he is incapable of accepting that not everything goes to plan. Thirdly it tallies with Mr Tilley’s evidence about how Mr Zerehannes interacted with him. We note Mr Tilley is very senior to Mr Zerehannes. Ms Knight is not. If Mr Zerehannes were prepared to behave towards Mr Tilley like he did, then it is entirely plausible he would behave in the way Ms Knight said. Grievance of 12 December 2018 259. On 12 December 2018, Mr Zerehannes raised yet another grievance in which he alleged as follows: “I would like to grieve [sic.] that the way you are handling or dealing with my concerns, complaints with no supporting reason, grievances and appeal grievances is itself an act of victimisation due to my complaints about race discrimination and due to my ongoing tribunal claim. …” 260. In the grievance he requested an explanation for the payment into his bank account of £1,487.06 from Asda and says that although he was promised an explanation, none was given. He also says: “5. I attended a listed grievance appeal meeting at 4.53pm (check what time I have signed in and out on the reception paper) as the meeting was due to start 5.00pm and I was there until 6.10pm and I was told that Mr C Tilley, Bristol Operations manager was not available. I would like to say Case No 2600155/2018 2601886/2019 Page 77 of 96 this even visiting the site is stressing me worst waiting an hour for a meeting to start is so stressful for me therefore; the appeal meeting did not go ahead. “Please I request the explanation or details and reasons of the two payments being made to bank account secondly, to receive your response to my application for a transfer to one of ASDA-Coventry Store.” Ms Hallam sent to Mr Zerehannes an explanation for the payments and a copy of his payslip. Rearrangement of meeting with Mr Tilley 261. Eventually, the grievance meeting with Mr Tilley was rearranged for 5 February 2019. Mr Zerehannes was sent notice of that on 28 January 2019 by Ms Z Averns. He said that he would attend the meeting provided Mr N’Kshama was there as his supporter and Mr Tekleab was there to interpret. Further grievance of 1 February 2019 262. On 1 February 2019, Mr Zerehannes sent in yet another grievance. He identified ten people who he said had applied for flexible working and he wanted to know what the circumstances or grounds were for each application. He also asked to receive supporting documents relating to each individual’s application, asking for the names of the individuals to be redacted as appropriate. He asked for other details in relation to the individuals concerned. He also asked why he had not been transferred to one of the Asda stores in Coventry. Commencement of investigation to grievance of December 2018 and meeting on 5 February 2019 263. On 5 February 2019, Mr Gamble started the investigation into the grievance that Mr Zerehannes had submitted on 12 December 2018 by having a meeting with Mr Zerehannes. The meeting with Mr Gamble had to be adjourned because Mr Teklab, the translator and colleague whom Mr Zerehannes was responsible for arranging to attend was not there. That was adjourned to 26 February 2019. Rearranged meeting with Mr Tilley 264. That meeting with Mr Gamble was then followed by the meeting with Mr Tilley. 265. We have read the notes in detail. We note again that Mr Zerehannes disclosed nothing that showed a suggestion that any complaint of discrimination has played a role in what has happened or that he has been discriminated against. It was, again, mere bare assertion. Mr Zerehannes refused to sign those notes, writing as follows: “I am not signing as I am agree with all notes from 1 to 6 pages.” 266. The Tribunal is puzzled by that statement because if he agrees, why not sign them. He did not give evidence that they were inaccurate in any way. It seems to be yet another thing in which Mr Zerehannes is simply seeking to be awkward. Case No 2600155/2018 2601886/2019 Page 80 of 96 277. He also set out a number of other complaints saying that Mr Tilley’s conduct was unreasonable, mainly focussing on the failure to provide a professional interpreter. He alleged that Mr Tilley’s handling of the appeal grievance was itself an act of “race discrimination and victimisation by way of race discrimination” due to his complaints about race discrimination. 278. Again, nowhere in the letter does Mr Zerehannes even hint at anything that shows that his race or previous complaints played any part in the way that Mr Tilley conducted matters. Delays 279. There had been delays dealing with Mr Zerehannes’s various grievances. This is no surprise. Mr Zerehannes raised grievances freely and liberally often without awaiting progress of earlier grievances. The Tribunal has had difficulty tracking them all so can appreciate why Asda may have had the same challenges. 280. On 4 April 2019, Mr Zerehannes chased Ms Knight for updates: 280.1. to the response his letter to Ms Averns on 30 January 2019; 280.2. his formal grievance against Mr C Tilley’s handling of his appeal grievance dated 19 March 2019; 280.3. his grievance letter of 12 December 2018; and 280.4. his grievance appeal relating to his letter of 16 November 2018. 281. On Monday 15 April 2019, Ms Knight replied to Mr Zerehannes letter. She wrote as follows: “I am writing in relation to your letter dated the 4th April 2019 which was submitted via email. My apologies for the delay in responding to this however I have been out of the office. “I have noted a number of points which you have outlined within this letter, many of which relate to ongoing processes within the depot. “As part of this process and a subject that has caused a number of delays has been the availability of an interpreter to attend the meetings with you. “After reviewing this matter, I must inform you that it remains your responsibility to source an interpreter to attend these meetings with you, and any cost associated to this will not be met by the depot and will remain your responsibility. “In line with this, can I please ask you to confirm back a suitable time and date for your meetings to go ahead whereby you, your representative and your chosen interpreter can attend the site in order for your outstanding meetings to be carried out. “In order for these to be concluded in as timely a manner as possible, can I ask you to confirm the details of this back to me by no later than Monday 29th April 2019. “Once I have received this detail, I will be in a position to answer your points outlined on your letter in more detail. Case No 2600155/2018 2601886/2019 Page 81 of 96 “In relation to the points regarding your payslips and your P60, I have attached the requested copies of your payslips to this letter. As the P60’s have not been issued at this time and we do not have the required visibility of this, they can be only be accessed through the online system however I will look into this matter further and advise you of the best course of action to access this.…” 282. The reply seems to us to be clear, concise and efficient. 283. During the hearing before the Tribunal, it became apparent that Ms Knight’s delay in dealing with this had been driven by very difficult personal circumstances in her life involving a close family member who was seriously ill at the time and which had placed stress upon her. The Tribunal does not need to go into the details of this for the purposes of the public judgment. 284. However, the Tribunal does note the complete lack of sympathy that Mr Zerehannes displayed in this regard. He did not accept her personal circumstances were a reasonable excuse for the delay, or that he might be placing a heavy burden on people with his multiple complaints. In echoing the words that Mr Tilley used in his own preparatory notes for the grievance, Mr Zerehannes demonstrated to us he had no understanding that other people have lives too; that everyone else is human and that mistakes get made, and that not everyone can perform at their best all the time for all sorts of reasons. We think it is somewhat telling of Mr Zerehannes’ conduct that he was unable, even when confronted with this information, to accept that maybe things were not how he had chosen to believe them, and further shows how unreliable he is as a witness. 285. On 18 April 2019, Mr Zerehannes wrote in response to Ms Knight a lengthy letter which in essence suggested that it was not his responsibility to find someone to interpret for him and that he felt that it should be the responsibility of Asda. He also requested written questions relating to the following grievances and letters : “1. My letter to Zoe Small, letter dated 30/01/2019. “2. My formal grievance against Mr C Tilley’s handling of my appeal grievance, dated 19/03/2019. “3. My grievance letter of 12th December 2018. “4. Grievance appeal relating to my letter of 16th November 2018.” Grievance of 15 May 2019 286. Mr Zerehannes raised another grievance on 15 May 2019 in which he wrote (so far as relevant): “I write to complain as follows: “1. The business is failing to deal with my concerns raised within my grievance dated 12/12/2018, my letter dated 30/01/2019 and 01/02/2019, my letter dated 26/02/2019; my appeal letter (on 15/11/2018) and grievance letter dated 19/03/2019; in accordance to the grievance procedure time scale in order to cover up discrimination act and / or hide evidence of race/ disability discrimination; Case No 2600155/2018 2601886/2019 Page 82 of 96 “2. The business failing to deal with my concerns raised within my grievances and letters above because of my ongoing tribunal claim. “3. I invite the business to provide me with the requested information in the table below and to provide me with material evidence: copy of each individual’s Application or letter, notes of meeting and decision being made by managers. Each part of documents related to an individual will be referred as “Employee 1” documents; “Employee 2” documents etc…; this within 14 days from 16/05/2019 to avoid further unreasonable treatments.…” He then sets out a table in which the columns are: “Date of the request & of the decision to allow the Application. “Circumstances and/or supporting grounds of Application. “Shift being allowed to do, “Why Application were granted. “Name of the manager who dealt with the request. “Reason why I was not offered any of the same shift. “Terms & conditions of Employment. 287. It is quite clear at this point that Mr Zerehannes is now receiving some advice behind the scenes. It would also seem to us that Mr Zerehannes is unable himself to identify any actual examples of discrimination. That is apparent from the earlier correspondence in which he makes bare assertions. Furthermore he had in earlier grievances identified people who he felt were treated more favourably. Now he was trying to seek information to enable him to build a case. Transfer application query 16 May 2019 288. On 16 May 2019, Mr Zerehannes wrote to Ms E Knight. He told her that he said that he was suffering from work related stress and anxiety. He explained that he had requested back in September 2018 to be transferred to one of Asda’s Coventry stores. He said he completed the application form for transfer, and it was sent to the IDC on 27 October 2018. He complained that he had not received any offer of employment from the Coventry store. He also complained that Asda has not replied to various items of correspondence. Ms Knight replies to Mr Zerehannes letters 289. On 20 May 2019, Ms Knight replied formally to Mr Zerehannes. 290. Firstly she dealt with the letter received on 12 December 2018. She wrote as follows: “Point 6: I have subsequently contacted the Coventry Store who have informed me that due to a consultation programme that retail were undergoing, they were unable to proceed with your application for a transfer following on from a recruitment ban being implemented. They have also advised that they did attempt to make contact with you on two occasions Case No 2600155/2018 2601886/2019 Page 85 of 96 Outcome to the grievance appeal from Mr Tilley on 16 July 2019 299. On 16 July 2019, Mr Tilley provided the outcome to the grievance appeal hearing that he had heard. The grievance appeal letter is 15 pages long and it is written in a similar style to other grievance appeal outcome letters, that is to say he sets out Mr Zerehannes’ allegations and then sets out his response to it. It is quite clear that Mr Tilley has dealt with every single point that Mr Zerehannes raised in his grievance appeal that Mr Tilley was asked to consider. He had clearly carried out a thorough investigation and full consideration of matters. He came to the conclusion that there was no evidence to support any allegation of discrimination or victimisation. The letter is a detailed and through consideration. We can see no legitimate criticism of his conclusions. Events afterwards 300. On 25 July 2019, Mr Zerehannes wrote to Ms Knight asking for witness statements of everyone who was interviewed as part of the appeal grievance process. He also asked for the notes of all appeal investigation meetings and for the investigation report to be sent to him so that he could submit Mr Tilley’s decision to the employment tribunal alleging that that also was an act of race discrimination and victimisation. We can see no evidence that suggests Mr Tilley came to his conclusions because of Mr Zerehannes’ race, his wife’s asthma or because he had raised complaints of discrimination. 301. On 25 July 2019, Mr Zerehannes submitted a new flexible working, relying on his wife’s asthma. The outcome that he sought was exactly the one that he had put in in the first place. 302. On 30 July 2019, Mr Zerehannes wrote to Ms T Francis, who is the Late Shift Manager, care of Ms Knight in response to Ms Francis’ letter of 29 July 2019. The Tribunal does not have a copy of that letter of 29 July 2019; however, it appears that there were some difficulties in communication between Ms Francis and Mr Zerehannes. 303. A return-to-work meeting was arranged for 5 August 2019. This was because Mr Zerehannes’ career break had come to an end. 304. The documents at this point become rather sparse but it is apparent from Mr Zerehannes’ letter of 4 September 2019 that Mr Zerehannes’ new flexible working request had been refused. Mr Zerehannes again alleged that the refusal was itself an act of victimisation due his tribunal claim and previous grievances about discrimination. We have no evidence to suggest that was the case. 305. An appeal hearing was fixed for 19 September 2019. The letter dated 7 November 2019 from Mr Morris, Operations Manager, reads as follows (page 834): “Reference: Flexible Working Meeting 19th September 2019 “I apologise for any inconvenience the delayed response has caused you. “Within our meeting of 19th September 2019, I accepted an option presented by you as one of two working patterns presented. The request Case No 2600155/2018 2601886/2019 Page 86 of 96 was to work every Monday on the Late Shift, on a shift pattern of 1500hrs- 2300hrs. “There are two main points that I took away to review following our discussions: “i) Clarification as to why a 1700hrs start time had been made available to other colleagues. This point was presented on the basis that I had not accepted the second option that you presented in working 1700hrs to 2300hrs on a Sunday. I did not accept this on the basis that we have three set shift patterns … Your representative presented confirmation of two comparative colleagues that have been given working patterns that deviate from this schedule. I have reviewed these comparators and extended my review behind this point. I can confirm that no colleague has been offered a permanent shift start of 1700hrs. “ii) You requested feedback on why the business could accommodate you on Sunday previously but not on a Monday and how that has transitioned to being the reverse now. I would advise, as a business, we continue to look at matching capability with volume constraints. Flexibility can be achieved through revision of recruitment, which planned to commence at the time we met on 19th September 2019. I would note that the availability of Sunday working may have been considered at the time of our meeting had you been in a position, which I appreciate you are not, to have committed to a set shift schedule.…” 306. On 14 October 2019, Mr Zerehannes was invited to attend an investigatory hearing into an allegation that he had worked outside of Asda during his career break without Asda’s written permission contrary to terms and conditions of the career break. 307. On 19 October 2019, Mr Zerehannes confirmed that he was and still is self- employed in order to earn money to support himself, his family and his disabled wife. He requested various copies of numerous documents and how Asda became aware he was self-employed and requested that Asda deal with various other concerns. Curiously, the letter ends with the following paragraph (page 833): “You may be aware or not that I have raised various grievances and appeal grievances about race discrimination which are subjected to my ongoing Employment Tribunal claims against ASDA and even if my claims are rejected by the tribunal, I will give consent to my Representative to refer my Claims including grievances, appeal grievances, grievance outcomes etc. in his Book titled “Black phobia at workplace and lack of remedy and recommendation”. This is Dr Ibabakombo’s book. In his skeleton argument to the Tribunal he says this case and our decision may be referred to in that book. We put that to one side. However, it implies that in the latter stages at least, Mr Zerehannes had the benefit of Dr Ibabakombo advice and support. We do not know if he had the benefit of that in the earlier stages. Case No 2600155/2018 2601886/2019 Page 87 of 96 Ability to bring a claim 308. The Tribunal notes that as of 24 October 2017 at the latest Mr Zerehannes was aware of the Equality Act 2010 and (at least some) rights under it. Mr Zerehannes was also a member of a trade union in the early days at least up to the presentation of this grievance. He has not given us any explanation of why he was not able to present claims earlier, when he became aware that he might have a claim, what he did to investigate the possible claims or when. He has not alleged he was dissuaded from bringing a claim by anyone or that he was misled as to his rights. He has not alleged he was unable to take reasonable steps to find out more about the types of claims available (e.g. from the Equality and Human Rights Commission’s website or from his union) or how to present a claim to the Tribunal. Law Direct discrimination 309. The Equality Act 2010 section 39 prohibits an employer from discriminating against or harassing an employee. Discrimination could include dismissal. 310. The Equality Act 2010 section 13 provides as follows (so far as relevant): “(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. “…” 311. “Disability” is to be interpreted to mean the particular disability complained of: Equality Act 2010 section 6(3). 312. Likewise “race” means the particular race complained of: Equality Act 2010 section 9(2). 313. Whether treatment is less favourable is to be assessed objectively: Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT. 314. The section contemplates a comparator. In Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 33 UKHL Lord Scott explained that this means that: “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class.” Where there is no real comparator, the Tribunal must consider how a hypothetical comparator should be treated (Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646 CA) unless the reason for the treatment is plain: Stockton on Tees Borough Council v Aylott [2010] ICR 1278 CA. 315. The protected characteristic need not be only reason. Provided it has a “significant influence on the outcome, discrimination is made out’. Case No 2600155/2018 2601886/2019 Page 90 of 96 326.2. It is not enough for a claimant to prove bare facts of a difference in status and a difference in treatment. They only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that the respondent had committed an unlawful act of discrimination or harassment: Madarassy at [56]; Efobi UKSC at [46]. There must instead be some evidential basis on which the Tribunal could properly infer that the protected characteristic either consciously or subconsciously was the course of the treatment. 326.3. The Tribunal may look at the circumstances and, in appropriate cases, draw inferences from breaches of, for example, codes of practice or policies. 326.4. If the claimant succeeds in showing that there is, on the face of it, unlawful discrimination or harassment, then the Tribunal must uphold the claim unless the respondent proves that it did not commit or was not to be treated as having committed the alleged act. The standard of proof is the balance of probabilities. It does not matter if the conduct was unreasonable or not sensible: The question is if the conduct was discriminatory. 327. In Efobi UKSC and Hewage the Court said it is important not to make too much of the role of the burden of proof provisions. As Lord Hope said in Hewage at [32] (endorsed in Efobi UKSC): “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Time limits for claims under the Equality Act 2010 and continuing acts 328. The Equality Act 2010 section 123 require a claim to be presented within 3 months of the detriment/less favourable treatment, or such other period as the Tribunal thinks just and equitable. Where there is conduct extending over a period of time, time runs from the end of that period. To decide if there was a continuing act, the Tribunal must look at the substance and ongoing state of affairs to determine if the claimant was treated less favourably over that period: Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 CA. 329. When deciding whether to extend time the factors in the Limitation Act 1980 section 33 can be a useful aide but are not prescriptive: Southwark London Borough Council v Afolabi 2003 ICR 800 CA. They are not a framework for thinking. Their relevance depends on the facts of the particular case. The best approach for a Tribunal in considering the exercise of the discretion is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular, “the length of, and the reasons for, the delay”: Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23. We remind ourselves that there is a public interest in enforcing time limits and that the claimant must persuade us to extend time, if a claim is otherwise out of time. Case No 2600155/2018 2601886/2019 Page 91 of 96 330. Ultimately the Tribunal has a broad discretion when weighing up all the circumstances, but length of delay and reasons for it are always relevant, as is the prejudice to the respondent if a claim that is out of time is allowed to proceed: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 CA. Unauthorised deductions from wages 331. The Employment Rights Act 1996 Part II regulates the right of an employer to deduct from an employee’s wages. In summary an employer cannot make a deduction from wages that are properly payable. Sick pay is something that can fall within the meaning of wages. 332. However properly payable means there must have arisen a legal entitlement to the money: New Century Cleaning Co v Church [2000] IRLR 27 CA. 333. Once an employer tells an employee that they are going to receive a discretionary payment e.g. sick pay on terms, the employer is under a legal obligation to pay that bonus in accordance with those terms, at least until the terms are altered and notice of the alteration is given — Farrell Matthews and Weir v Hansen [2005] ICR 509 EAT. Such sums therefore fall within the act. However if a payment is discretionary, then it is not properly payable until the employer has decided to exercise its discretion to pay that sum to the worker. In particular the act does not empower the Tribunal to direct the employer how it should exercise a discretion nor to award damages for the unreasonable exercise of a discretion. 334. A Tribunal is entitled to interpret a contract of employment to determine what sums are properly and lawfully due from the employer to the employee: Agarwal v Cardiff University [2019] ICR 433 CA. 335. The approach to interpretation of an employment contract is the same as that used in the civil courts: CF & C Greg May Ltd v Dring [1990] ICR 188 EAT which is to look at the meaning of the terms to the reasonable person appraised of all the facts in the case. Deposits 336. Rule 39(5) provides: “(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— “(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and “(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), “otherwise the deposit shall be refunded.” Evidence 337. We have reminded ourselves of 2 other points: Case No 2600155/2018 2601886/2019 Page 92 of 96 337.1. The fact that a party does not succeed on one allegation does not automatically mean that the other allegations are less likely to be correct. We should look at all the facts: Qureshi v Victoria University of Manchester and anor 2001 ICR 863, EAT 338. We must decide on the evidence and not make assumptions or use verbal short hands like “institutional racism” without evidence of the same. There is a need for evidence that shows that the claimant themselves was the victim of a prohibited act under the Equality Act 2010. Conclusions Unauthorised deductions from wages Was Mr Zerehannes paid less in non-statutory sick pay than he was entitled to be paid, in the period 18 October 2017 – 28 February 2018? 339. No. The reason for this conclusion is that it is our opinion that the payment of CSP is entirely at Asda’s discretion and that they had not exercised their discretion to make a payment of CSP to him for this period. 340. The reason we conclude that the entitlement is based on a discretion is as follows. 340.1. The use of the word “may” in “Subject to [proper notification] you may be eligible for the following occupational sick pay at basic rate plus shift allowance if applicable.” in our opinion can only objectively be interpreted as indicating a possibility, a power, an option and not a right. Were it the parties’ intention to make CSP a right, then the contract would have used the word “will”, “shall” or similar to include the consequence of proper notification is automatic entitlement under the contract. The structure of the clause in our view means that the only reasonable interpretation is that the power or possibility of payment of sick pay arises only on the employee complying with the notification requirements. 340.2. In addition the words “The procedure for notification of absence is detailed in the Asda Logistics Services Absence & Sickness Policy, which is available from the People Team, and does not form part of your contract of employment. …” also point towards a discretion and not a right. The words “and does not form part of your contract of employment” can refer only to the policy as a whole and not the procedure. That would explain the use of the word “may” earlier, and its clear emphasis on the notification of illness being merely the first step to Asda being able to exercise a power to pay CSP. As the lay Case No 2600155/2018 2601886/2019 Page 95 of 96 this case. There is simply no evidence from which we could properly conclude that it did. Mr Zerehannes’s cases implies that asthma itself if an issue and that the respondent’s view may be different if, for example, the disability were something other than asthma. There is no evidence that asthma itself triggers any animus. Asthma is a commonly known disease in the UK and it is difficult to see why anyone would have a prejudice towards the fact a third party had it. Itis highly implausible that his wife’s asthma in some way affected the respondents’ behaviour or decisions towards him. We cannot see why knowing an employee’s spouse has asthma could even influence what happened and Mr Zerehannes has not provided any evidence that it did, yet alone some credible basis for believing that it might. 353. Besides, even if he had shifted the burden of proof, the respondents have satisfied us their conduct was not because of Mr Zerehannes’s wife’s asthma. 354. The claims of direct discrimination because of his wife’s asthma that are in time fail and are dismissed. Victimisation 355. Having considered the documents we are satisfied that the acts identified at paragraph 28 above are protected acts. They complain of discrimination or victimisation and so fall within the statutory definition. 356. We dismiss the claims for victimisation, however. Even if we accept that he suffered the detriments as alleged, there is absolutely no evidence that links what the respondents did or did not do was in any way to the fact he raised complaints of discrimination and victimisation. This is quite apparent from our findings of fact. It is no more than repeated self-assertion. Nothing he has adduced shows circumstances that might even suggest victimisation, yet alone the level of co-ordination that his case implies took place between all the various actors. There is nothing that would suggest that, as individuals acting under their autonomy without reference to others, they have consciously or subconsciously reacted to the fact he made protected acts (assuming they knew of them which is not clear itself) by subjecting him to detriments. We cannot properly conclude on the evidence that the respondents might be guilty of victimisation in relation to the allegations. 357. Besides, even if he had shifted the burden of proof, the respondents have satisfied us their conduct was not because of Mr Zerehannes’s complaints of misconduct under the Equality Act 2010. 358. The claims of victimisation that are in time fail and are dismissed. We address those out of time below. Jurisdiction in relation to claims out of time 359. Because there are no claims in time that succeed, all claims that are possibly out of time cannot be part of a continuing act (because there are no acts). Therefore they are prima facie out of time unless we extend time. 360. As of 24 October 2017 at the latest Mr Zerehannes was aware of the Equality Act 2010 and rights under it. Therefore there is a strong implication that at least after that date he knew of or should have make reasonably enquiry into his rights under the act. Case No 2600155/2018 2601886/2019 Page 96 of 96 361. There is no evidence he has advanced that explains why he did not or could not bring his claim earlier. He had a trade union representative at the beginning, clearly had access to resources about his rights under the Act (in order to be able to reference them in correspondence). 362. He has not persuaded us that he was not able to bring his claims in time. We also note that the claims on the evidence have no merit, the delay is significant and there are no good reasons for the delay. If we extended time the respondents would have to deal with the claims that are out of time for no good reason. 363. Therefore those claims that are out of time are dismissed for lack of jurisdiction because it is not just and equitable to extend time. Deposit 364. In his order of 29 January 2019, Employment Camp ordered Mr Zerehannes to pay a deposit as a condition of continuing with his claim for direct disability discrimination. His reasons were as follows: “2. I make the deposit order because I decided that the claimant’s associative direct disability discrimination claim has at best little reasonable prospects of success. I know that this is the claimant’s only remaining disability discrimination claim and consists of the series of complaints [set out above]. “3. The problem the disability discrimination complaints have – a problem common to the whole of the claimants claim under the Equality Act 2010, but particularly acute in relation to those complaints – is causation. It appears that there is no proper basis, and will be no proper basis, upon which the Tribunal at the final hearing could decide, even in the absence of any other explanation, that the reason for any mistreatment of the claimant was the claimant’s wife's disability” 365. The claims failed for substantially same reasons Employment Judge Camp identified. On the evidence adduced, and even without any explanation from the respondents, there is no basis we could properly conclude that he was treated as he alleges because of his wife's disability. Therefore the deposit is forfeited to the respondents. Employment Judge Adkinson Date: 1 November 2021 Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.